20160130-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to His Honour Mullaly J CCV-Re APPEAL-15-2502-Re Location Ballarat Venue-unsworn Statement Abolished-etc

8/20/2019 20160130-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to His Honour Mullaly J CCV-Re APPEAL-15-2502-…

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p1 30-1-2016 © G. H. Schorel-Hlavka O.W.B.INSPECTOR-RIKATI® about the BLACK HOLE in the CONSTITUTION-DVDA 1 st edition limited special numbered book on Data DVD ISBN 978-0-9803712-6-0

PLEASE NOTE : You may order books in the INSPECTOR-RIKATI® series by making a reservation, See alsoHttp://www.schorel-hlavka.com Blog at Http://www.scrib.com/InspectorRikati

Mr Garry McIntosh , Associate to His Honour Mullaly J. 30-1-2016 [email protected]

Cc: Mr Peter Kidd CJ County Court of Victoria, [email protected] Buloke Shire Council [email protected] Daniel Andrews Premier Victoria [email protected] Mr Martin Pakula, martin.pakula@parliament. vic .gov.au & [email protected] Elliott Stafford and Associated [email protected] County Court of Victoria [email protected]

Re: 20160130-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to His Honour Mullaly J CCV-Re APPEAL-15-2502-Re Location Ballarat Venue-unsworn statement abolished-etc

Sir, after 3 months having passed since the pre appeal hearing held before His Honour Mullaly J

ON 30 October 2015 the court still has not to my knowledge managed to perform a basic legalrequirement and that is to advise me the location of the Ballarat venue. It is not uncommon that acourt/tribunal hold a hearing other than its ordinary physical court venue location and this mayeven eventuate upon a short notice, such as due to certain water damage or otherwise. It is forthis important that the courts has the not just decency and courtesy but the competence to advisea party, without this party having to request this, what the physical location address will be wherethe hearing or any further hearing is to eventuate, and this including the time, etc. In my viewthat the county court of Victoria has been unable to manage this in 13 weeks (3 months) I view

underline its gross incompetence to deal with basic legal requirements.When will the court manage such simple basic task and provide me with the relevantdetails?

Failure of due process.

QUOTE Merritt v. Hunter, C.A. Kansas 170 F2d 739.Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of

juris.END QUOTE

From onset there was a total failure of due process. While Buloke Shire Council and its legal

representatives were alerted to the fact that due to ill held I couldn’t travel, nevertheless despitelegal requirements no “full brief” was served upon me and this is the modus oprandi that has sofar persisted throughout. Despite that a full request was made for a copy of the “brief” on 27October 2015 as after all with the pre-appeal hearing it was important for me to know what wasat the time on 20 August 2015 and subsequently on 17 September 2015 placed before theMagistrates Court of Victoria at the St Arnaud venue, to date no attempt was made to serve sucha “brief”. This also in violation of the orders of His Honour Mullaly J on 30 October 2015 thatthe “brief” was to be posted to me b y no later than 9 November 2015 via Australian Post.In fact neither did Buloke Shire Council legal representatives file any Notice of Appearance asrequired by the rules of the court and this may underline the disrespect/disregard by Buloke Shire

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council legal representatives as to compliance with the rules of the court as well as with therights of myself as a defendant/objector.This has been aggravated by the courts themselves, as while it was known that there was anobjection to jurisdiction submitted in writings in my ADDRESS TO THE COURT includingmy written submissions OBJECTION TO JURISDICTION for the 20 August 2015 hearingand again in regard of the 17 September 2015 hearing the court at no time dealt with theOBJECTION TO JURISDICTION and as such never invoked jurisdiction.

I below quote part of the 2 September 2015 correspondence received from ES&a Lawyers actingallegedly for Buloke Shire Council, I have however at the end of this ADDRESS TO THECOURT included a scanned copy of the correspondence in full.

QUOTE (Alison J May LEGAL Practitioner ES&a 2-9-2015 correspondence) We act on behalf of the Buloke shire Council in the above prosecution.

The above matter was listed for before the Magistrates’ Court at St Arnaud on 20 August 2015 and weacknowledge your numerous items of correspondence. We do not propose to respond to a majority of thematters raised therein.

The purpose of this letter is to confirm that as you did not appear the matter has been adjourned for hearing at

the St Arnaud Ma gistrates’ Court on 17 September 2015 at 8.30am In the event you do not appear on thatdate the matter will proceed in your absence.

We confirm that the St Arnaud Magistrates’ Court is the appropriate venue for this matter as the offence took place in Ber riwillock. The only Court which is closer to the location of the offence is the Magistrates’ Courtar Swan Hill which is a greater distance from your residence. Council will not consent to any change ofvenue and we note that the Collingwood Magistrates’ C ourt is not the appropriate venue for your matter inany event as it deals with matters only where the offence has taken place within the strict boundary of a small

proportion of the City of Yarra or where the accused resides within that same boundary.

We note your purported objection to jurisdiction contained in your letter dated 17 August 2015 and stronglysuggest that you take legal advice with respect to same.

END QUOTE (Alison J May LEGAL Practitioner ES&a 2-9-2015 correspondence)

It is therefore absolutely clear that ES&a lawyers were fully aware about my OBJECTION TOJURISDICTION . The fact they desired not to respond to them also must be taken into accountas a failure to prove ju risdiction, this as the court cannot “assume” jurisdiction but the pro secutorhad to prove jurisdiction by evidence. A refusal to do so is no legal excuse and therefore theCourt on 20 August 2015 had an uncontested OBJECTION TO JURISDICTION . See also setouts further below under different headings.

Actore non probante reus absolvitur. When the plaintiff does not prove his case, thedefendant is absolved.

Ei incumbit probatio qui dicit, non qui negat. The burden of the proof lies upon him whoaffirms, not he who denies.

The same eventuated on 30 October 2015 before His Honour Mullaly J on the pre-appeal hearingwhere His Honour Mullaly J without a shred of evidence being before the court to justify thisoutburst/tirade His Honour Mullaly J commenced to attack my person, also refusing to followDue Process such as to consider the written submission stated in the ADDRESS TO THECOURT that was already on court file as well as submitted from the Bar table, and by thistotally ignored the written submission OBJECTION TO JURISDICTION regarding theappeal.It may be in legal terms extra ordinary that an Appellant objects to the jurisdiction of the court tohear and determine an appeal, but to the court what should be relevant is what the correct process

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is in law. If I can achieve the same end result desired with an OBJECTION TOJURISDICTION then so be it. In the end when I submitted that I would seek a judicial reviewHis Honour Mullaly J then announced to adjourn matters so His Honour Mullaly J could read the11 page written submission being the ADDRESS TO THE COURT , however upon returntotally failed to deal with the OBJECTION TO JURISDICTION albeit did raise the issue ofthe “full brief”. It also should be understood that Buloke Shire Council legal representatives

purportedly served a “ brief ” regarding a 18 March 2013 court hearing which was long before the17 November 2014 Infringement Notice was issued. As such it appears that Buloke ShireCouncil legal representatives had purportedly a hearing listed long before the alleged offence had

been committed. Then it purported to amend the “ brief ” to a 22 February 2016 date but thisdoesn ’t in any way then provide the “full brief ” I was all along entitled upon that was before thecourt, if at all, on 20 August 2015 and/or 17 September 2015. More over in the purported briefthe only witness listed is Mr Wayne Wall and one then has to ask if the legal representatives ofBuloke Shire Council are not listed as witnesses how can they then purport to give evidence fromthe bar table by making unsworn statements from the bar table (Itself a violation of the sanctityof the bar table) by producing a stack of papers claiming to be my writings.In my view it is a serious matter to file and/or serve a false “ brief ” with a hearing date that is afabrication of the person signing the document. Yet, even in that regard the court has so far failed

to address this issue also.County Civil Court: CIVIL PROCEDURE — Dismissal . It is not apparent from the face of the complaint that theissues raised involve the same parties and facts previously litigated and ruled on, and that dismissal was warranted

based on the affirmative defense of res judicata. Reversed and remanded for further proceedings. Joseph John Libertino v. Mario Vavoulis and Rock Bottom Auto Sales, Inc ., No. 13-AP-0017-WS (Fla. 6th Cir. App. Ct. June 15,2015).

As on 19 July 2006 (about 10 years earlier) I then already had successfully objected to the jurisdiction of the County Court of Victoria involving the Commonwealth as well asState/Territorial Attorney-Generals and the Attorney-General for the State of Victoria then madeknown to abide by the courts decision, then clearly where Buloke Shire Council is seeking to

purportedly enforce State legislative provisions it cannot now on behalf of the State of Victoriaviolates this undertaking. This also because it was a “ constitutional ” issue and the same partiescannot re-litigate a constitutional issue.

His Honour Mullaly J clearly disregarding the OBJECTION TO JURISDICTION by thisviolated cardinal critical legal requirements and the moment His Honour Mullaly J did so HisHonour Mullaly J no longer continued as an judicial officer but as a private person, basically as Iview it conducting a STAR CHAMBER COURT /KANGAROO COURT . This I view is acriminal matter in itself.

The following Authority while dealing with the U.S.A likewise is applicable to the judiciary inthen commonwealth of Australia.

Note: Any judge who does not comply with his oath to the Constitution of theUnited States wars against that Constitution and engages in acts in violationof the supreme law of the land. The judge is engaged in acts of treason.The U.S. Supreme Court has stated that "no state legislator or executive or

judicial officer can war against the Constitution without violating his undertakingto support it". See also In Re Sawyer, 124 U.S. 200 (188); U.S. v. Will, 449 U.S.200, 216, 101 S. Ct. 471, 66 L. Ed. 2d 392, 406 (1980); Cohens v. Virginia,

QUOTE:-

“..However, the judiciary has no power to amend or modernize the Constitution to give effect to whatJudges think is in the best public interest. The function of the judiciary, including the function of thisCourt, is to give effect to the intention of the makers of the Constitution as evinced by the terms in whichthey expressed that intention. That necessarily means that decisions, taken almost a century ago by

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Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-1942QUOTE

Common expressions such as: 'The Courts have declared a statute invalid'," says Chief Justice Latham,"sometimes lead to misunderstanding. A pretended law made in excess of power is not and never has been alaw at all. Anybody in the country is entitled to disregard it. Naturally, he will feel safer if he has a decisionof a court in his favor, but such a decision is not an element, which produces invalidity in any law. The law isnot valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is invalid abinitio.

END QUOTE

Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi [1999] HCA 27 (17June 1999)QUOTE

For constitutional purposes, they are a nullity. No doctrine of res judicata or issue estoppel can prevail againstthe Constitution. Mr Gould is entitled to disregard the orders made in Gould v Brown. No doubt, as LathamCJ said of invalid legislation, "he will feel safer if he has a decision of a court in his favour". That is becausethose relying on the earlier decision may seek to enforce it against Mr Gould.

END QUOTEThe judiciary however has shown to be blatantly ignorant of what is Due process of law and thatshould be of grave concern to anyone.While the Infringement Notice was to have been withdrawn prior to any summons having been

issued it now is that the summons relies upon the Infringement Notice. As such it appears to methat Buloke Shire Council legal representatives so to say are a bunch of amateurs not knowinghow to properly litigate and by this inflict undue harm upon me. Surely I should be entitled tohave competent litigation being conducted against me and not be subjected to this kind of utterrubbish, and then they dare to pursue cost for their utter disgraceful rubbish?They have consistently violated “Due process ” and aided so by the judiciary, hence it isreasonable to suspect for a FAIR MINDED PERSON that because the courts share the sameABN number as to State of Victoria it no longer provides “due process ” but rather are so to sayin my view participant and so aiding and abetting in the perverting of justice.

Federal jurisdiction versus State jurisdiction, etc.

While the matter that was instituted for hearing before the Magistrates Court of Victoria at StArnaud was one as to State of Victoria legislation the fact that as the objector andCONSTITUTIONALIST relies upon the legal principles embedded in the Commonwealth ofAustrali a Constituti on Act 1900 (UK) then this means the matter became a federal jurisdictionalmatter, albeit past litigation on constitutional issues which on 19 July 2006 were decided in myfavour are beyond re-litigation and as such Buloke Shire Council acting for the State of Victoriais bound by this..

The High Court of Australia held that where a party pleads the non-application of a State Act because of Commonwealth legislation then the State Court is exercising Federal jurisdiction.

(However only if the State Court can invoke jurisdiction, which VCAT cannot and neither is acourt!) Tr oy v Wr igglesworth (1919) 26 C.L.R. 305; 25 (1926) 38 C.L .R. 441; 33 A.L .R. 66 ..

Held that a State Court exercising federal jurisdiction when it erroneously appliesCommonwealth Act to subject matter before the Court . Commonwealth v Cole, (1923) 32 C.L.R.602 and Commonwealth v Dal ton, (1924) 33 C.L .R.. 452; 30 A.L .R. 85

QUOTE Basso v. Utah Power & L ight Co ., 495 F 2d 906, 910.Jurisdiction can be challenged at any time." and "Jurisdiction, once challenged, cannot be assumedand must be decided.

END QUOTE



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QUOTE Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.Once challenged, jurisdiction cannot be assumed, it must be proved to exist.

END QUOTE

QUOTE Basso v. Utah Power & L ight Co., 495 2nd 906 at 910,

Jurisdiction can be challenged at any time, even on final determination. END QUOTE

QUOTE Dil lon v. Dillon , 187 P 27

Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of the term. .

END QUOTE

QUOTE H agens v. Lavine , 415 U.S. 533,

Once jurisdiction is challenged, it must be proven END QUOTE

QUOTE HALSBURY’S LAWS OF AUSTRALIA says under (130 -13460):Consent to summary jurisdiction The consent to be tried summarily must be clear and unequivocal and afailure to carry out the procedures for obtaining the consent will deprive the court of jurisdiction to determinethe matters summarily.

END QUOTE

QUOTE Hill Top Developers v. Holiday Pines Service Corp., 478 So. 2d. 368 (Fla 2nd DCA 1985)Defense of lack of jurisdiction over the subject matter may be raised at any time, even on appeal.

END QUOTE

QUOTE I n Re Appli cation of Wyatt , 300 P. 132; Re Cavitt, 118 P2d 846.Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hearis void, ab initio.

END QUOTE

QUOTE ( Jagens v. Lavine , 415 S.Ct.768).Once jurisdiction is challenged, it must be proven.

END QUOTE

QUOTE Joyce v. US , 474 F2d 215.There is no discretion to ignore that lack of jurisdiction.

END QUOTE

QUOTE L atana v. H opper , 102 F. 2d 188; Chicago v. New York, 37 F Supp. 150.Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted.

END QUOTE

QUOTE M ain v. Thiboutot , 100 S. Ct. 2502 (1980).

The law provides that once State and Federal jurisdiction has been challenged, it must be proven.END QUOTE

QUOTE M elo v. US , 505 F2d 1026.Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks

jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action. END QUOTE

QUOTE Nor wood v. Renf ield , 34 C 329; Ex parte Giambonini, 49 P. 732.A universal principle as old as the law is that a proceedings of a court without jurisdiction are a nullityand its judgment therein without effect either on person or property.

END QUOTE

QUOTE Rosemond v. Lambert , 469 F2d 416.The burden shifts to the court to prove jurisdiction ."

END QUOTE



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QUOTE Standard v. Olsen , 74 S. Ct. 768,

No sanctions can be imposed absent proof of jurisdiction .END QUOTE

QUOTE Thompson v. Tolmie , 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471.Where there is absence of jurisdiction, all administrative and judicial proceedings are a nullity andconfer no right, offer no protection, and afford no justification, and may be rejected upon directcollateral attack .

END QUOTE

Legal Position of Buloke Shire Council to sue.

It should be understood that Buloke Shire Council c is standing in the legal position of the stateof Victoria when it sues regarding alleged enforcement of state legislation such as the CountryF ir e Author ity Act 1958 . See also Sydney Ci ty council v Commonwealth 1904 where the courtheld that council by delegated legislative powers was exercising within s114 of the constitutiontaxation powers. As such councils alleged incurred legal cost is self-inflicted and should not bereclaimable against me. As I had informed Buloke Shire Council long before it commenced toinstitute legal proceedings that I would challenge the jurisdiction of the courts, etc, then it cannotuse the extensive writings as a burden as it owns conduct (so that of its legal representatives) wasthe cause of it all. See also http://www.austlii.edu.au/au/cases/vic/VSC/2011/140.html H obsons Bay City Council v Viki ng Group H oldings Pty Ltd [2010] VSC 386 (27 August2010)It should be of concern that what I consider is fraudulent conduct that Buloke Shire Councilrequired by Infringement Notice to make a payment to itself rather than to the State of VictoriaConsolidated Revenue Funds, as is constitutionally applicable.

Administrative versus judicial hearing.

QUOTE ASIS v. US , 568 F2d 284.A judge ceases to sit as a judicial officer because the governing principle of administrative law providesthat courts are prohibited from substituting their evidence, testimony, record, arguments, andrationale for that of the agency. Additionally, courts are prohibited from substituting their judgmentfor that of the agency. Courts in administrative issues are prohibited from even listening to or hearingarguments, presentation, or rational.

END QUOTE

QUOTE Burn s v. Sup . Ct., SF, 140 Cal. 1.Ministerial officers are incompetent to receive grants of judicial power from the legislature, their actsin attempting to exercise such powers are necessarily nullities.

END QUOTE

QUOTE Thompson v. Smi th , 154 SE 583.

When acting to enforce a statute and its subsequent amendments to the present date, the judge of themunicipal court is acting as an administrative officer and not in a judicial capacity; courts inadministering or enforcing statutes do not act judicially, but merely ministerially.

END QUOTE

In this case the courts sharing the same ABN (Australian business Number) with that of thegovernment, allowing the government to access its computers and having the courts listed as“Business Unit 19 ”, etc, (see my recent extensive writings about this) cannot adjudicate merely

because a summons was issued with a charge as if the Municipal Fire Prevention Officer MrWayne Wall for the court divided my guilt, this despite that the Fire Prevention Notice itself wasin violation of the legal provisions of the Country F ir e Authority Act 1958 ! The mere fact thatno evidence was filed nor orally presented to the court on 17 September 2015 at the Magistrates

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Court of Victoria at St Arnaud underlines that the legal principle embedded in the constitutionthat a judicial determination can only be made after hearing “both sides ” has been violated.

Magistrates order versus Judicial Registrar order

http://www.austlii.edu.au/cgi- bin/sinodisp/au/cases/cth/HCA/1991/9.html?stem=0&synonyms=0&query="otherwise%20fell%20outside%20its%2

0jurisdiction%20 "H arri s v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991)QUOTE

The Full Court on appeal from Maxwell J. held that the review of the Deputy Registrar's decision wasconfined to an inquiry whether the parties did in fact consent to the terms of the order and whether the termsagreed upon were in a form appropriate to the type of order sought and were enforceable. But the order made

by the Deputy Registrar must have been made pursuant to s.79 - the section which confers power upon theCourt to order a settlement of or an alteration in the property interests of the parties. The Court could notmake an order which otherwise fell outside its jurisdiction merely because the parties consented to itand it follows, a fortiori, that a Registrar, exercising a delegated power, could not do so. Thus, for instance,under s.80(1)(j) of the Act the Court may make an order by consent, but only in exercising its powers underPt VIII. Section 37A(1)(g) allows the delegation to the Registrar of the power to make an order by consent,

but only where it is a power of the Court. And O.36A, r.2(1)(n) delegates to the Registrar the power referred

to in s.37A(1)(g).END QUOTE

While an appeal lies to the County Court of Victoria regarding a judicial determination of aMagistrate in my view where it relates to a Judicial Registrar then not an appeal but a review ofthe Judicial Registrar’s decision is the appropriate way. Whereas on appeal an appellate courtmay uphold the decision of a magistrate it cannot do so in regard of a Judicial Registrar, becausethe moment the court commences a “ review ” the Judicial Registrars decision is to so say wipedfrom the face of the earth. (See also http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1991/9.htm H arri s v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991))Yet, despite this by this day I have still not received formal orders of the purported 20 August2015 and purported 17 September 2015 hearings and reasons of judgments. As such, the courthas operated as to what I view is a STAR CHAMBER COURT and a KANGAROO COURT in secrecy without that I am allowed what precisely went on and neither so the generalcommunity.. QUOTE In the Marriage of Tennant (1980) 5 FLR 777 at 780

As no grounds for appeal are required to be specified in the notice of Appeal, which, on filing institutes theappeal (reg 122), there is no limitations of the scope of the appeal and all findings of fact and law made in thelower court in relation to the decree appealed are in challenge and cannot be relied on by the appellant or therespondent. All the issues (unless by consent) must be reheard. This of course brings me to the point of theabsence of reason for the magistrate’s decision in this case. Perhaps reasons were given orally but not recordedfor the record. Apart from the requirement of such reason for the purpose of the appeal process, there is the

basic ground of criticism that litigants who go to court, put their witnesses up, argue their case and attempt to

controvert the opposing case are entitled to know, if they lose, why they lost . I f they are given no r eason theymay be enti tled to feel the decision against them was conceived in prejudice, bias, or capri ce. In such a casenot only the litigant, but justice itself, is the loser.

Magistrates should realise, even more than they seem to do, that this class of business is not mere ordinarytrivial work, and they should deal with these cases with a due sense of responsibility which administrations ofthe summary jurisdiction Act and the far reaching consequences of the orders that they make thereafter entail.[Baker v Baker (1906) 95 LT 549; In Robinson v Robinson (1898) p135; and again in Cobb v Cobb (1900)

p145] it was stated that when making orders of this kind, from which lies an appeal to other courts, it is the dutyof the magistrate not only to cause a note to be made of the evidence, and of his decision, but to give the reasonsfor his decision and to cause a note to be made of his reasons... Elaborate judgements are not required, but thereasons which lead the magistrate to make his order must be explicitly stated.

END QUOTE .

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In fact I filed my appeal without having any proper records as to what was if at all ordered by thecourt on 20 August 2015 and/or on 17 September 2015. This to me underling the gross abuse ofthe legal processes and one may wonder if the Judicial registrar could so to say manage to run akindergarten?

The State of Victoria abolished the right to make an “unsworn statement”.

See also “ Justification as to orders for cost. “ regarding confirming under oath a statementmade at the Bar table as to become “evidence”.

Evidence Act 1995 (Cth) Act No. 2 of 1995 as amendedQUOTE

25 Rights to make unsworn statements unaffected

This Act does not affect any right that a defendant in a criminal proceeding has under a law of a Stateor a Territory to make an unsworn statement.

Note: The NSW Act has no equivalent provision for section 25.END QUOTE

Azzopardi v The Queen [2001] HCA 25 (3 May 2001)QUOTE

9. When, in the late nineteenth century, legislatures decreed that people accused of crime should have thecapacity to testify in their own defence, it was well understood that this would bring some consequencesthat were potentially unfavourable to some accused persons. This understanding is reflected in thereasoning of the various judges in R v Kop s[12] , a case decided soon after the 189 New South Waleslegislation. There was a well-founded apprehension that, when juries became aware that an accused personwas entitled to testify, there would, in some cases, be a practical compulsion to do so. A practicalcompulsion to testify frequently arises from circumstances that have nothing to do with the problem nowunder consideration. It may arise from the facts of a particular case, or the nature of an accused person'sdefence. It may arise because of the accidental unavailability of a witness who could give evidence of somefact important to the defence case. The existence of a practical compulsion to testify is not inconsistent withthe immunities which together make up the right of silence. Giving an accused the choice of making anunsworn statement, and prohibiting judicial comment on the exercise of such a choice, was not asatisfactory solution. Unsworn statements were sometimes abused, especially in sexual cases, wherecomplainants might be publicly vilified and humiliated by statements that could not be challenged or testedin cross-examination. Juries came to know that an accused could give evidence on oath, if he or she wishedto do so. Judicial silence on the topic could leave an accused person exposed to unguided reasoning thatmight be far more dangerous than the reasoning legitimately available.

10. The problem that arose, when accused persons were given the capacity to testify, concerned the onus of proof. The onus remained on the prosecution; and the standard remained proof beyond reasonable doubt.But there was a change in the forensic context. Lord Mansfield's maxim that "all evidence is to be weighedaccording to the proof which it was in the power of one side to have produced, and in the power of the otherto have contradicted "[13] always applied to criminal as well as civil trials. It is exemplified by R v

Burdet t [14] , a case decided in 1820. However, it took on an altered significance when the power tocontradict extended to the power to contradict by sworn testimony of the accused.

11. To express the question as one concerning the probative significance of silence may be misleading. Thequestion concerns the significance of an accused's silence, either generally or on a particular subject, whenevaluating either the whole or part of the evidence. In the context of a jury trial, the question only arises ifthe prosecution has established a case fit to go to the jury; that is to say, if there is evidence which, ifaccepted by the jury, is capable of establishing the guilt of the accused beyond reasonable doubt. If thatcondition is satisfied, then it is the task of the jury to evaluate the evidence for the purpose of decidingwhether it proves the guilt of the accused beyond reasonable doubt. A corresponding process of evaluationmust be undertaken by a magistrate dealing with a summary offence, or by a judge trying a case without a

jury. The silence of the accused cannot add to the evidence. Nor can it be treated as an implied admission ofguilt. But there are circumstances in which it can legitimately be used in the evaluation of evidence.

12. Between 1993 and 2000, trial judges, and intermediate appellate courts, bound by decisions of this Court,looked to Weissensteiner for guidance as to the principles according to which, at a criminal trial, the silenceof an accused legitimately may be considered in evaluating some or all of the evidence in the case. In both

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of the cases presently before the Court, the trial judges gave directions which were obviously based uponthe majority judgments in Weissensteiner . Courts of Criminal Appeal, bound by Weissensteiner , referred tothat decision in considering instructions to juries, and decisions of trial judges sitting without juries, and intheir own reasoning [15] .

13. In the reasons of the majority in Weissensteiner , the focus of attention was the failure of an accused toexplain or contradict evidence. That expression, "explain or contradict", has been used repeatedly in thiscontext, at least since 1820, when it was used by Abbott CJ in R v Burdet t [16] .

14. In Weissensteiner , Mason CJ, Deane and Dawson JJ sai d[17] :

"We have quoted rather more extensively from the cases than would otherwise be necessary in order toshow that it has never really been doubted that when a party to litigation fails to accept an opportunity to

place before the court evidence of facts within his or her knowledge which, if they exist at all, wouldexplain or contradict the evidence against that party, the court may more readily accept that evidence. It isnot just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That isalmost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawnfrom the evidence may be more readily discounted in the absence of contradictory evidence from a partywho might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent withinnocence may cease to be rational or reasonable in the absence of evidence to support them when thatevidence, if it exists at all, must be within the knowledge of the accused." (emphasis added)

15. It seems unlikely that, in the hypothetical case concerning the tattoo earlier considered, their Honourswould have rejected the proposition that the failure of the accused to deny that he had a tattoo on his leftarm could make it easier or safer to accept the evidence of the witness who testified to that effect. If theywould have done so, the language of the above passage is, to say the least, unguarded.

16. Brennan and Toohey J J[18] , after referring to the need for a jury to be properly instructed as to the onus of proof, said:

"But the jury may draw inferences adverse to the accused more readily by considering that the accused, being in a position to deny, explain or answer the evidence against him, has failed to do so." (emphasisadded)

17. In 2000, this Court decided RPS v The Quee n[19] . The trial judge had directed the jury in terms whichevidently attempted to follow the majority judgments in Weissensteiner . There was an added feature in thatcase. Section 20 of the Evidence Act applied. The applicant was given leave to raise, in this Court, a new

ground of appeal, concerning instructions given by the trial judge as to the significance which the jurymight properly attach to the appellant's failure to give evidence. This Court held that the instructions wereerroneous, and ordered a new trial. The criticisms went well beyond a conclusion that the instructions werein some respects inconsistent with s 20 . Those criticisms had potential application to trials beforemagistrates, and before judges sitting without juries. They are, in my view, and with respect to those of acontrary opinion, in some respects impossible to reconcile with the majority judgments in Weissensteiner .

18. The issue concerns the evaluation of evidence. The evidence against an accused may be direct, orcircumstantial, or partly direct and partly circumstantial. The problems of evaluating the evidence mightconcern the reliability of particular witnesses, on the safety of drawing inferences from established facts, orthe reasonableness of competing hypotheses. In relation to such problems, the maxim stated by LordMansfield in Blatch v Archer might be of significance. As the judgments in Weissensteiner recognised, thatsignificance could be diminished, and might sometimes be eliminated, by considerations which flow fromthe circumstance that, at a criminal trial, there are reasons why it may be dangerous to treat an accused's

silence in the same way as one would treat the silence of a party to civil litigation. Those considerationswere taken into account in the majority judgments, and allowance was made for them. But they do not turnupon the difference between direct and circumstantial evidence, or between facts already the subject ofevidence and additional facts, or between facts known only to the accused and other facts.

19. As a matter of logic, a rigid distinction between failure to contradict and a failure to explain, (a distinctionwhich is inconsistent with almost 200 years of authority), is difficult to sustain. Nor is it logical todistinguish between commenting upon an accused's failure to give evidence and commenting on anaccused's failure to give an innocent explanation of some apparently incriminating fact or circumstance.The lack of logic is even more evident if the occasion to make a comment of the second kind only ariseswhen the accused is the only person who would be likely to know of the innocent explanation, if it existed.If that is the case, then the difference between failing to explain and failing to give evidence is purelysemantic.

20. There is, in my view, no justification for distinguishing between a failure to give or call evidence about

some additional fact and a failure to give or call evidence about some fact already the subject of evidence.

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And there is no justification for limiting the occasion for comment to facts known only to the accused. Howdoes a trial judge, or a jury, know whether some fact is known only to the accused? There i s a largedifference between saying that, if a certain fact existed, the accused would know of it, and saying that theaccused is the only person who knows the fact.

END QUOTE

Azzopardi v The Queen [2001] HCA 25 (3 May 2001)QUOTE

71. In the course of his charge to the jury, the trial judge (Nield DCJ) told the jury, in unexceptionable terms,that an accused may give evidence on his or her trial, but is not under any obligation to do so because the

prosecution bears the onus of proving beyond reasonable doubt the guilt of the accused of the offence oroffences with which the accused is charged. The judge went on, again in unexceptionable terms, to remindthe jury that because the appellant had decided not to give evidence, the jury

"must not think that he decided not to give evidence because he is, or believes himself to be, guilty of theoffence with which he stands charged. It would be completely wrong of you to think that. His decision notto give evidence must not be thought by you to be an admission of guilt on his part. There may be manyreasons why an accused person may decide not to give evidence. I tell you, members of the jury, that youmust not speculate as to why the accused decided not to give evidence."

He went on to say, in the passage of his charge which now is impugned, that:

"However, members of the jury, when assessing the value of the evidence presented by the Crown, you areentitled to take into account the fact that the accused did not deny or contradict evidence about matterswhich were within his personal knowledge and of which he could have given direct evidence from his

personal knowledge. This is because, members of the jury, you may think that it is logic and common-sensethat, where only two persons are involved in some particular thing - the complainant and/or a witness andthe accused - so that there are only two persons able to give evidence about the particular thing, and wherethe complainant's evidence or the witness's evidence is left undenied or uncontradicted by the accused, anydoubt which may have been cast upon that witness's evidence may be more readily discounted and thatwitness's evidence may be more readily accepted as the truth."

72. The impugned passage of the judge's charge gave the jury instructions which cannot be reconciled with theearlier instructions given to them. The jury were told, correctly, that the appellant bore no burden, onus orobligation to prove anything. Yet, at the same time, by the impugned passage, the jury were invited toconclude, from the fact that the appellant did not give evidence, that "any doubt which may have been castupon [the prosecution evidence] may be more readily discounted and [that evidence] may be more readilyaccepted as the truth". That would be so if, and only if, the circumstances were such as to require response

by the appellant. Yet the judge had correctly told the jury that the law required no response from him.

END QUOTE

In the State of Victoria “unsworn statement” was abolished.

While His Honour Mullaly may have the view that despite of In the Marriage of Tennant (1980) 5 FLR 777 at 780 the court is not required to provide any “reason of judgment” I holdthat nevertheless where it issue orders against me (apart of being without jurisdiction) then I amentitled to know on what legal consideration!

QUOTE In the Marriage of Tennant (1980) 5 FLR 777 at 780As no grounds for appeal are required to be specified in the notice of Appeal, which, on filing institutes theappeal (reg 122), there is no limitations of the scope of the appeal and all findings of fact and law made in thelower court in relation to the decree appealed are in challenge and cannot be relied on by the appellant or therespondent. All the issues (unless by consent) must be reheard. This of course brings me to the point of theabsence of reason for the magistrate’s decision in this case. Perhaps reasons were given orally but not recordedfor the record. Apart from the requirement of such reason for the purpose of the appeal process, there is the

basic ground of criticism that litigants who go to court, put their witnesses up, argue their case and attempt to



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controvert the opposing case are entitled to know, if they lose, why they lost . I f they are given no r eason theymay be enti tled to feel the decision against them was conceived in prejudice, bias, or caprice . In such a casenot only the litigant, but justice itself, is the loser.

Magistrates should realise, even more than they seem to do, that this class of business is not mere ordinarytrivial work, and they should deal with these cases with a due sense of responsibility which administrations ofthe summary jurisdiction Act and the far reaching consequences of the orders that they make thereafter entail.[Baker v Baker (1906) 95 LT 549; In Robinson v Robinson (1898) p135; and again in Cobb v Cobb (1900)

p145] it was stated that when making orders of this kind, from which lies an appeal to other courts, it is the duty

of the magistrate not only to cause a note to be made of the evidence, and of his decision, but to give the reasonsfor his decision and to cause a note to be made of his reasons... Elaborate judgements are not required, but thereasons which lead the magistrate to make his order must be explicitly stated.

END QUOTE

As elsewhere set out in this writing lawyers cannot misuse/abuse the sanctity of the Bar table tomake statements without being confirmed as “evidence ” in the witness box as being “unswornstatements ” from the Bar table. Even an self-represented accused party must vacate the sanctityof the bar table (stand aside) to be charges, be served with documents and/or and make anyunsworn statement (if the court were to permit any unsworn statement to be made) and yet wehave a party that engages a legal practitioner then to have benefits not provided to the self-represented litigant, in clear violation to the rule that every party is equal before the court.Regretfully to my knowledge the judiciary has been bias to allow this gross abuse/misuse bylegal practitioners from the Bar table for decades and I view THIS MUST STOP!As I have set out below as to the issue of cost, it violated the criminal burden of prove “withoutreasonable doubt ” where a lawyer merely claims a certain amount of documentation where thecourt then issue orders as if the documentation was part of evidence “beyond reasonable doubt ” an in violation to the H obsons Bay City Council v Vik ing Group H oldings Pty Ltd principlealso. It would be absurd in fact idiotic to hold that a Judicial Registrar in mere seconds couldhave peruse the 200 odd pages the lawyers claimed to seek cost for as to judicially determine ifthe writings did or didn ’t legally justify orders for cost in spite of the H obsons Bay City Counci lv Viking Group Holdings Pty L td principle. In my view the Judicial registrar involved should besuspended from adjudicating and be retrained to learn/understand/comprehend the basic legalrequirements involving legal processes/procedures and in particular regarding criminal litigation.

Fraud by prosecutor nullifies prosecution case.

I understand that in the case of M ORI ATY v LONDON, CHATM AM & DOVER RY Queen’sBench 1870 L.R. 5 Q.B. 314;39 L.T.Q.B. 109;22 L.T. 163;34 J.P. 692;18 W.R. 625 in which the

plaintiff sued a railway company for personal injuries sustained and this plaintiff has gone aboutsuborning false evidence and it was held by the Court that even so the plaintiff would have had agenuine and justify to case to sue normally, by the plaintiff conduct to suborn false evidencethis was seen by the Court that this conduct amounted to an admission that he had no case.

Corrsepondence file versus court file & WITHOUT PREJUDICE & Justification as toorders for cost.

Hansard 20-4-1897 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention )QUOTE Mr. HIGGINS:

I think it is advisable that private people should not be put to the expense of having importantquestions of constitutional law decided out of their own pockets.

END QUOTE



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While according to an audio recording for which I scandalously was required to pay for to obtainsome information as to what transpired on 17 September 2015 at the Magistrates Court ofVictoria at St Arnaud that the legal representatives for Buloke Shire Council submitted for costregarding my writings, the Judicial registrar appeared to immediately respond with ordering costsubmitted for this. This without that any evidence was filed to prove such writings neither for theJudicial Registrar to consider the validity of the writings the legal representatives claimed I hadwritten. For what it might be worth they may have simply placed empty pages of a ream of paper

before them with placing some page on top claiming the lot was written documentation by me,and the judicial Registrar simply couldn’t bother to check i f indeed this claim from the Bar tablewas justified. In my view the Judicial Registrar ought to have indicated that as no evidence can

be provided from the Bar table if therefore the lawyer representing Buloke Shire Council was togive evidence under oath from the witness box.

SCHOREL v. SCHOREL (1982) C 66117 of 1982 Unreported Transcript 11-3-82 and 12-3-82 before Emery SJ .(In regard of the former husband’s statements from the bar table earlier during the proceedings

about matters on the lists)QUOTE Page 115: (Emery SJ examine-in-chief Mr Schorel in the witness box)

You made or gave me some in for mation whi le you were standing at the bar table just a li ttle whi le agoabout the two li sts of f urni ture that your wi fe produced this morni ng, exhi bits A and B. Wh at you said

fr om the bar table is true, is that r ight? - - - That is correct, your Honour.Yes. Well , that makes it all evidence that you have given instead of ju st a statement .END QUOTE .

The Judicial Registrar couldn’t have had a clue if this corres pondence was written WITHOUTPREJUDICE or not and if so if the Defendant consented to it being used in court as evidence.

No list of the alleged documents were filed either which prevents the accused therefore to checkif indeed the documentation referred claimed to have been written by him were in fact so.Where documentation refers to constitutional issues then even if they were to be admitted asevidence with consent or otherwise then the aforementioned legal principle embedded in theconstitution that a party shouldn’t be out of pocket regarding constitution issues is relevant. .

Because of the total failure from onset of Buloke Shire Council to itself comply with the legalrequirements of the Country F ir e Authority Act 1958 then the court had to consider if thecontent of each writings were justified or not and cannot order cost regarding writings which

points out, even if extensive, the breaches of law by Buloke Shire Council and/or its legalrepresentatives.

M augham v. H ubbard King’s Bench: 1828 6 L.J (o.s.) K.B. 229 QUOTE

While a witness memory can be refreshed as to use a document written by him it must be realized that unlessthe document so used is actually filed as an exhibit it (the document) itself is not part of evidence.However a party that calls for inspection a document in the possession of another party is required then to useit as evidence (See Wharam v. Routledge Nisi Prius: 1805 5 Esp. 235:170 E.R. 797

END QUOTE Because correspondence to the court doesn’t form part of the court file but becomes part of thecorrespondence file, then only if each particular the correspondence is filed as an exhibit can thecourt consider it and again subject to the afore stated. It is totally irrelevant for criminal

proceedings if a party wrote hundreds of books and/or miles of reams of paper if they do notform part of the case and have not been submitted as exhibits.

Qui inique non erit aequi - He who has committed iniquity, shall not have equity . Francis' Max., Max. 2.

Semper necessitas probandi incumbit qui agit. The claimant is always bound to prove: the burden ofproof lies on him.



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My attendance to any court hearings or purported court hearings is not intended and neither must be perceived that I waive my objections. I rather am aware that what I view corrupt conduct bythe judiciary if I were not to attend, well within my legal rights, then the judicial officer morethan likely will use this against me no matter that in view of the OBJECTION TOJURISDICTION I cannot be compelled to attend where it undermines some of the essence ofmy OBJECTION TO JURISDICTION , which I continue to maintain throughout.

VACATING 22 February 2016 hearing at Ballarat venue.

In my view the court cannot proceed with any De Novo hearing on 22 February 2016 (asdirected by His Honour Mullaly J) for that I am not ready to proceed as I am still denied a copyof the “full brief ” of the proceedings that eventuated in the magistrates court of Victoria at stArnaud and still denied copies of sealed orders setting out the precise orders issued on 20 august2015 and on 17 September 2015.Also in view of the failure by Buloke Shire Council and its legal representatives to comply withthe order to serve the “full brief ” by sending it by Australian Post by no later than 9 November2015 then I view the matter should be returned to the Court for any further directions/orders.

It also would be an absurdity for the Court to pursue a De Novo hearing in violation of theOBJECTION TO JURISDICTION as well as that the Court would be in no position to enforce(not that I seek to concede this may be legally justifiable) the orders of the Magistrates Court ofVictoria at St Arnaud where I am still denied to even prepare my case (not that I concede theOBJECTION TO JURISDICTION might fail)As I also have refused to accept the NOTICE OF APPEARANCE by Buloke Shire Councillegal representatives which was filed out of time and without having applied for and obtainedany leaved to file and serve out of time a NOTICE OF APPEARNACE then I maintain thatBuloke Shire Council legal representatives had NO LEGAL STANDING to appear before HisHonour Mullaly J on 30 October 2015 and still has no business to appear before the court torepresent Buloke Shire Council. As I view counsel for Buloke Shire Council misled His Honour

Mullaly J on 30 October 2o015 as to claim from the Barf table “yesterday ” and so conceal thetrue date when the written request was received regarding the “full brief ”/“ brief ” then this mayhave constituted “contempt in the face of the court ” and “ perverting the course of justice ”, and assuch should be dealt with before the court could deal with any other matters. The same shouldapply with the failure to comply with the orders to server via Australian Post by no later than 9

November 2015 the “full brief ” and also with the deceptive “full brief ” date of 18 March 2013.It should be understood that the OBJECTION TO JURISDICTION doesn ’t contain all legalissues, this because even if the court were to dismiss my OBJECTION TO JURISDICTION (Not that I seek to imply or concede this to eventuate) then the alleged evidence of Mr WayneWall also will be subjected to a rigorous legal challenge. I have in the past during crossexamination of so called “EXPERT WITNESSES ” proven that what they had stated in theirAffidavits and what actually turned out to be evidence before the court were distinctly differentcircumstances.I request that the 22 February 2016 ordered hearing at Ballarat is vacated.Again any appearance by me to attend to any ordered hearing is not intended and neithermust be perceived I relinquish my objections.

This correspondence is not intended and neither must be perceived to state all issues/details.

Awaiting your response, G. H. Schorel-Hlavka O.W.B. (Gerrit)

MAY JUSTICE ALWAYS PREVAIL ®(Our name is our motto! )

Documents

20160130-Schorel-Hlavka O.W.B. to Associate Mr Garry McIntosh to His Honour Mullaly J CCV-Re APPEAL-15-2502-Re Location Ballarat Venue-unsworn Statement Abolished-etc