court Transcripts 10/11/09

County Court report Transcript , Tuesday 10th November 2009
Honourable Judge Cohen
Office of Public Prosecution Mr. Cordy.

OPP. Your Honour, Mr McDonald appears in person

HON. Yes, He can come forward to the Bar table, Mr McDonald

ACC. Thank you

HON. Just over here.

OPP. Your Honour will recall that I asked for this matter to be mentioned, as to ascertain what Mr. McDonald intentions were- - -

HON. Yes

OPP. In relation to pursuing this matter or to determine whether in some way , the matter could be resolved . Now I've had the opportunity to have a short conversation with Mr McDonald and tell him the Crown's position is, in relation to the matter.

HON. Yes,

OPP. He's been thinking about that. I don't know what he wants to do although I suspect that he wants to continue with this constitutional argument and it may be that- well, if that's the case, clearly, the matter won't be held this year. But, in any event, perhaps Your Honour could fire at Mr. Mc Donald what he wants to do. He understands what I've been saying.

HON. Yes, Mr McDonald your case is in the list of trials for this circuit and that's why I've call it on for mention to see what is happening with it. I've read what's on the file, including the transcript of what occurred with Judge Chettle at a directions hearing-case conference, I think is was in October last year. ...First of all, I've read your letter setting out why you haven't got legal representation. That of course, is your choice, but I'm obligated to tell you that if the question of costs of legal representation is part of the issue for you, you are entitled to apply for legal aid and you will do that through Victorian Legal Aid.

If Victoria Legal Aid were to turn you down for funding, in relation to legal representation for this trial, you are entitled to apply to this court, under 360A of the and my Associate has a copy of that to give you.. I'm giving that to you, because you're not represented at this stage- - -

ACC. Yes, Your Honour.

HON. - - - and I'm obligated to tell you about these rights. They're decisions for you to make- - -
ACC. Okay.

HON. - - - but obviously, and I think you have been told this before, including by Judge Chettle, having representation can be very useful in a case in this court, but it's ultimately a decision for you and you've got the right , as I say, to apply to Legal Aid or if they refuse you, to apply to the court to - that application would be to direct Legal Aid to give funding if the court sees fit having heard all the circumstances.

ACC. Thanks very much, very good.

HON. Now about the issues, I've read that you say you want to run the argument that the laws of the state of Victoria don't apply to you as an Aboriginal person?

ACC. That's correct

HON. And in particular, the Drugs, Poisons and Controlled Substances Act doesn't apply to you.

ACC. That's correct

HON. I'm not deciding that issue today of course.

ACC. All right

HON. But I've read the materials and it seems to me that you've embraced and used the Laws of the State of Victoria at times, in several ways and. indeed, if seemed to me, from the record of interview with police, that your real argument is, you challenge the content of those laws. You don't think they should be what they are.

ACC. I don't think they're -I think- basically. I've been fighting these - marijuana laws since 1975, I've come a long way, I've been battered through it all. Now my policy- the Aboriginal side, we have to have an alternative to alcohol, it's killing our people and because the marijuana is nature's own it grows in the ground and it's our law, if it's grown on the earth, comes from our country, it is yours.

Now considering no one has ever died from it- You see I'm in a position where I'm looking after thousands of people, I'm trying to- well get them away from alcohol. We've got to find them an alternative, because our race can't hold it, they just -a bit different, maybe in the next two generations, they'll adjust to alcohol. but my main concern is, protect them- the future of the children and the future well being of the people.

I mean, alcohol -I mean, I don't - it's a killer, it's deadly- it's much more harmful then marijuana, because we can't understand why- in South Australia and the Capital Territory and Canberra, you can use it. I can't see why we can't adjust, we've had a long time to think about it, 25 years, why Victoria is placed under restrict rules. Different if someone died from it. No one has ever died..

HON. Well, I'm not going to enter into an argument that - - -

ACC. No, I'm sorry, you're right.

HON. - - - part with you., Mr. McDonald, but it seems to me, your argument is the content of the law, rather than whether it applies to you at all or not and cannabis is an introduced species into Australia, isn't it?

ACC. No, no, up in Cape York, on the Peninsula of Cape York. You'll see it in the Joseph Banks, its a cousin to - - - -

HON. It's a cousin to it, it might - but not the actual Cannabis L plant that's forbidden under the Drugs, Poisons and Controlled Substances Act.

ACC. Well, the Cannabis L plant, I mean, it's probably, I don't know, I'm not really technical, I'm a D.O. on all that, but as a cannabis ( indistinct) boy- it was used by special people, magical men, you call them what you like, spiritual people, all night, they used to go around and they- when they had people like that, they'd have a smoke and they'd dropping the plants on it.

You can -1916, they had them on the New Zealand, no- the Swiss people, just bought some bones back and they had film of it in 1916, smoking out of a biig long thing, because, I mean, its a peaceful drug, I mean that's the point.

HON. This court can't determine that.

ACC. Right

HON. What-all this court can do is decide whether, on the -well you want to challenge this law actually applies to you or not?

ACC, Yes, but that's - - -

HON. But that's not what you're really arguing, you're really arguing you want the laws of Victoria changed.

ACC. Well that's part of it, because I'M looking at the white part, as well as the black.

HON. All right. The question for today is how we're going to proceed with this trial.

ACC. Okay.

HON. Just take - it's your intention is it, to plead not guilty to the charges? See, these charges, normally- I know you've been told by Judge Chettle to, for the relatively small amount involved, this would be normally be heard in the Magistrates' Court.

ACC, Yes

HON. If it's heard in this court and you were- in the magistrates Court, you can plead not guilty.

ACC. Right.

HON But the matter is heard and decided by the Magistrate.

ACC. Yes.

HON. And then there are various rights of appeal, either rehearing to this court or if there's a point of Law involved, an application to the Supreme Court, but it's now in the County Court.

ACC. Right.

HON. If you plead not guilty, there has to be a trial with a jury.

ACC. Right, that's - - -

HON. But question of Law get decided by the Judge

ACC. Right.

HON. And it seems to me that, on any reading, if you want to run argument, that the law doesn't apply to you at all, that would be a point of Law.

ACC. Right.

HON. A Jurisdictional issue for the Judge to decide. As the law presently stands and I don't know if you've had a chance to look at s.446 and following of the Crimes Act? No? Have you taken-I'm not trying to ask about the content of it and I've why you don't want to get lawyers involved, but have you received any legal advice about this point you want to run.

ACC. Well , I have made the point to the department of Public Prosecutions, by Raelene Maxwell.

HON. Yes

ACC. Now, Raelene told me, many-well, last year sometime, the beginning of last year.

HON. This is someone in the Office of Public Prosecution?

ACC. DPP

HON. Yes.

ACC. Okay, Raelene Maxwell. she said to me, if I get an adjournment on the first day, she would get the Act, you know, the paper where it gives them the power and from then on, I've asked her three times and the last time I said all I need is the one piece of paper, which gives the Victorian Government the power to make laws for the Aboriginal race.

Now I have kept this quite, it goes back 1996, no I didn't want people to run around saying, OK, you've no law and I can smash your house up, I can rob you. That is not the point. the point of our law is, you come back to our law-if the thing grew from the earth, it was ours. it was legal to take it. the point is that's the point I'm looking at, because our law said it all right, our Law said, if you're not hurting no one, it's got- I don't know if you know Aboriginal law but is pretty - - -

HON . Very little of it, unfortunately

ACC. It's very strong and very real, though they say it's barbaric, It's not really. if you read our law - - -

HON. That's not what I'm here to argue about or-and I can do nothing about what others say Mr. McDonald.

ACC. Right.

HON. What I am trying to do is work out how this case can proceed through the legal system that is enforced in this state. My duty is to conduct the trials that come before me or-------

ACC. Yes.

HON. ----- deal with them according to the laws created by Parliament.

ACC. Right

HON. Now, if you want to run this argument, how many witnesses do you intend to call?

ACC. I was going to call some Ministers from Melbourne, I - Minister Halpin, all that, so I may as well go all the way with it, but the only- the law I've got is, I'm relying on the DPP to prove to me that they have jurisdiction, that is one of the arguments on it.

HON. Well that's-it's - he Drugs, Poisons and Controlled Substance Act 1981 is the Act which you have been charged and that applies to all person in Victoria.

ACC. Yes, but what happens here, see, I've charged under the Drugs, poisons- It's a narcotic Act on the thing, Now, if you look at- the Australian Government says. cannabis is not a narcotic, it's been erroneously placed as a narcotic. so we're getting this Commonwealth Law- - -

HON. Which Commonwealth Law is that?

ACC .Well, it's the thing I've got-I can show you, I've got a copy - - -

HON. If there's an inconsistency between Commonwealth Law and State Law, then it's a matter that has some constitution ramification and various law offices throughout Australia need to be notified - - -

ACC. Well, I'm going to go on what- - -

HON. No, what is it that you're talking about there, so that , at least, then the OPP know what which Commonwealth Law it is that you say, this is inconsistent with.

ACC. Well, I've got the thing here-I could get my file out. It's clearly says, in the article, from the Commonwealth Government, that cannabis is erroneously classed as a narcotic.

Now I don't believe it's a narcotic. I mean people it a drug. I hate drugs, there's other drugs, I mean there's this amphetamine stuff and all that and gives people the impression, because you get the young Kids thinking, Oh, Marijuana doesn't really hurt you, they may get into hard stuff.

We've got to come to a point in our life where we're thinking of the future, we can't go on all the time- !0,000 people a year, in Victoria, are charged with Marijuana. that's ridiculous, 5.2 million Australians per year are in trouble. Now, all we need to do is sit back with a clear and open mind and think of the future. Think of what we're doing to our people.
What we're doing to the Children. are we talking rubbish, I mean -because I think, alcohol, We've got to change it. We can't say get rid of it, because alcohol keeps the economy going. With out alcohol, you wouldn't have nurses on the weekends, hospitals would be empty because alcohol keeps it going.

HON. Well, it's part o the economy, I'm not sure that many want to keep going, but we'll _ lets come back to how this case can run in this court please.

ACC. All right.

HON. So you want to call evidence that cannabis is not a narcotic?

ACC. That would be one of the points.

HON. How many-what I need to do, is get an estimate of how long this case might take?

ACC Well I think - - - -

HON. How many witnesses might be involved.

ACC. I think it would only take a day, might be in half day.

HON. How many witnesses would you propose to call, roughly

ACC Four.

HON. Four

ACC Are the Police coming or because- what happened , in the original one, all- the number of plants were wrong and they had three times of what it was, you know?

HON. I see. That's coming down to the content of the case, at the moment-if-let me go back a step. I'M -if you want to run the jurisdiction argument that the Act doesn't apply to Aboriginal people, That one issue.

ACC Right.

HON. If the issue is. whether you were charged with- whether you're not guilty of these charges, either because they've got their evidence wrong and you weren't cultivating or in possession of cannabis.

ACC. To many. I'm arguing over - - - - .

HON. Or if the argument - there were fewer plants its nowhere near what's called a commercial quantity, so- - -

ACC No I know that.

HON. --- its nowhere near that and that's why I say,
it would normally be in the Magistrates court.

ACC. Yes.

HON. I'm sure Mr Cordy would talk to you about whether the exact no. of the plants is what the issue is about that, as to whether the police have counted wrong no. of plants or something.

ACC. Its an honest mistake, he had three times as much as there was.

HON. Well---

ACC. He admitted in the latter, he tried to get it changed down.

HON. That part. I suspect, could be resolved, but we'll _ that would depend on what the prosecution witnesses have said and what parts you say got wrong, in adding up how many plants there were. But, in terms of the issues about theses Laws apply to you at all, that's not a- I'll hear what the prosecution has to say about has to say about this, but is seems to me, at first thinking about it, that's what we'd call a jurisdictional issue, a question of Law, and it would be decided by a judge, not a Jury.

ACC, Right

HON. Take a seat for a moment

ACC. Thanks very much.

HON. Mr. Cordy, as you've said, this matter was brought on to see what the ambit of the case was before to see how long the estimate needs to be and when it can conveniently be listed for trial., if it has to go a head. But in terms of what- first of all, do you have anything to say about whether this is a jurisdiction issue for a judge to decide - - -

OPP. Well - - -

HON, Before we get to the number of plants, the issue of whether the Act applies.

OPP. The prosecution position is that the act does apply.

HON. Does apply

OPP But, of course, that's something, clearly, the -Mr. McDonald's challenge, although, I note Your Honour's observations that really seem to be talking about content, rather than whether or not the Law applies, But - - -

HON. That's -I've said, I'm not deciding that today, that seemed to me, to be what Mr. McDonald's argument is about, about whether the Laws are right or wrong about prohibiting possession or cultivation of quantities of cannabis and that isn't consistent, as an issues of whether The Act applies to all to Aboriginal people, but to get this matter on- - -

OPP. None the less, if he wants to put that argument, well; I suppose, he's entitled to run the argument, Your Honour, and Honour was taking him to s.446 of the Crimes Act, I'm just having at that.

HON. I've had a look at that this morning, what this is Mr. McDonald, is Provision in the Crimes Act, for question of Law to be reserved for what we call a case statement to the Court of Appeal of the Supreme Court. However, it's easier said then done in some respects and sub-s.1 and indeed, the following sections, s.447, envisages that there's a trial run and a conviction and then a case stated on the question of Law for the Court of Appeal.

However, sup-s.2, envisages a point of Law arising beforer a Jury is empanelled. Now, that's as the Law stands at the moment. After 1 January of next year and we're of course, already in November 2009 and this case has been on the list all year and not reached, there's a new Criminal Procedure Act that I just haven't brought with me to check the transitional provisions of, I'm not sure whether Mr. Cordy can help me on that or not, as to whether this case, already being in the lost would be covered.

But, after 1 January , there can be what's called an interlocutory appeal to the Court of Appeal of the Supreme Court if a judge has a ruling, with which somebody- which one side or another wishes to challenge. it may be - what I'd need do is check whether that would apply, if this matter came on for trial early next year and a judge decided issue, before a jury was empanelled and whatever witnesses you want to call, in respect of it, it could be down - on the assumption that both sides agree, its a question of law to be decided before a jury is empanelled and then an interlocutory appeal taken if, indeed, you want to use this case as the vehicle to test this point in the Court of Appeal or whether, in fact, it mightn't ultimately be more easily resolved if you talk to Mr. Cordy about what the no. of plants, you say, was involved and whether---

ACC. Well, that will be easy, that will be self-explanatory, I was right, I'm not being rude against the police or nothing. But the point is , see, I've been promised these papers all the time with the jurisdiction question. Now, it must be written down somewhere, where you've got powers to make laws. As you know, we're a nation inside a nation.

HON. No, No, Mr. Mc Donald, that's you cant keep holding it up over that, because you've been told, several times, as far as the State of Victoria is concerned, the Act it enacts, it doesn't have to specify that it applies to Aboriginal people, because it applies to all people in the State.

ACC. Yes, but, see, the point is here, weave got Acts, in Australia, for Aboriginals only. Its no good telling me that Aboriginals are like everyone else, because they're not. They are independent nation and I am Chief Law Officer. Now, what happens here, I'd like to see Australia to become one. That's me whole aim. I've been talking so long to reconciliation, .I'm sick of black fellas, being black fellows. We're Australian, we're thinking of the future.

Now if we're thinking of the future, we've got to make it positive, so we're not - stupid laws, I'm not being rude, but they are. They're laws that are against the people's will. Five million, two hundred thousand people cannot be wrong.

Now, as say, I've been going for a long, but, I must be specific and if the DPP had have said what they done six months age or, what, well, last year sometime, where they would give me the documents to prove, without any doubt, that the Court had jurisdiction, it's not fair on me to say - - --
HON. There is no such documents. My understanding is, there is no such documents, Mr McDonald, The trial won't be held up waiting for a document that doesn't exist. That's my understanding , there will be no such document.


ACC. Okay. But, the point is there -mean, the Law-I mean, you can't say-I need- I'm saying, you're got no law, no power to make laws, no jurisdiction. Okay, we can't resolve this between me and the prosecutor, because I'm right. there's is no law. Okay, I'm not holding it over anyone, because I don't wasn't want to get- I just want to be specific, if we can change the law or the people, I've got a lot of people that are looking at me to what I'M doing on this matter.
I'm not going to broadcast it, because I don't want anyone getting up saying, I drive me Car, I break the window, you got no Laws. I am specifically talking about - - -

HON. Well, that's where your argument would lead, isn't it, if your were right, I'm Not deciding it today.

ACC No, good.

HON. And that's what I'M saying to you. It seems to me, your real argument is the content of the Law, not the Drugs, poisons and controlled Substances Act doesn't apply to Aboriginal people and then the very matters, you're saying you don't want to happen, would happen, if that was right.

ACC. Okay, but the thing is, I'm basing it on Aboriginal Law. Now, there's no law against Aboriginals driving a motor care or going fishing. it wasn't our costume, it wasn't our knowledge, but things come to fishing getting firewood or, you know, some thing that our Law covered.
See, our Law was very specific, we had a law, people don't realise, we had our law and, therefore, we had sovereignty , because without -society without law or sovereignty is irrelevant, it doesn't exist, we had our own Law. I mean -they're pretty- I mean, if you read the Bible, you've read the Aboriginal Law, That what it is. Do you know what I mean? That's in writing.
Now, the thing is, I'm left in a posting where I'm seeing all these people that don't want to near Alcohol, I mean, they prefer -they do prefer a smoke because it make them go to Sleep, makes them very placid, and I can't else, but think of their best interests and that's why I'm saying, you must be specific and the government could easily work this out.

HON. This court can't though. so , what I've got to come back to is what we do about a trial.

ACC. Right.

HON. I've only got this week and next week that I'm still sitting here but, of course , the County Court sits here most months of the year. You've been told me you want to call Four witnesses?

ACC, M'mmm

HON. For this argument? And you'll -then you want to put your arguments about why you say the Drugs, poisons and controlled substances Act 1981, doesn't apply to you?

ACC That's correct

HON The Prosecution will,. no doubt, want to argue why it does

ACC. Why it does.

HON. And it seems to me though that the whole argument will take more- probably no more than-it might take more then a day, in the end, but maybe not more then two days.

ACC. Well, that what I'd like-I'd like-I mean, I thought- I mean, I really respected the Courts, as you know, all the time, as I have done everything that is required, but it would be good, if you could just say to me, Mr. Weigel was going to - the others judge, I'm not sure what his name was, sorry for that, but - - -

HON. Well, you were last in front of Judge Chettle, I think

ACC. Okay, Judge Chettle said, Mr Weigel will write me, I rang him up and he's going to write back and sent the paper to me. I'm not here to embarrass anyone, I mean, the thing is, I've got to fight for the people, what we believe is right and it's only a weak loophole, but that the problem. I mean, I can't work for the people and work for the system as well, there's got to be a breakaway or something cleaned up and they've had plenty of time, 96 is what 13 years ago?

HON No, I think that's the -did you do anything more then write to the Scrutiny of Acts and Regulations Community?

ACC, Yes every year I write to the, Leader, the Premier, there's a stack of papers, I mean - - -

HON. All right. I'm Just looking to see, what - I think Judge said, Judge Duckett would hear it in January of this year and I'm Just looking to see , what it is, that you say Mr Weigel said he'd provider . I've got the transcript here of that. I can't see what it is that , I see - Mr Corby- just have a seat , Mr McDonald.

ACC. Thank you Your Honour

HON. Mr.Cordy, are you aware what it is that the OPP may have agreed to provide?

OPP No, I'm not aware of that, Your Honour, I know that Mr. McDonald has been writing to-over time, writing to a variety of people, requesting things.

HON. Yes

OPP. And the advice he received from the Department of Justice, back in August of 2008, Is really pertinent advice, Given that he's self-represented. The Matters that he's requested that the Victoria Government or the Attorney General advise on or has one, has the Victorian Parliament, proper legislated power to make laws for the Aboriginal race of Victoria, considering that the Victorian Constitution Act 1975 does not mention the Aboriginal race of Victoria and,
Two If the court's Jurisdiction is questioned in the Magistrates" court, should the matter then be transferred to the Supreme Court of Victoria to address the Jurisdiction issue, the reply is pretty straight forward. The matters to be raised are legal issues, neither the Attorney nor any public servant can provide you with legal advice about your matter, may I suggest you contact one of the following agencies to seek legal advice and assistance..

Now I can tell Your Honour that no material of the nature, sought by Mr. McDonald, is going to be provided to him and really, his recourse is to legal advice or run this argument on his own if he sees that is the appropriate way to go, but at the end of the day, He's not going to get the sort of advice that he wants and I think he encapsulated it when he said to Your Honour, he wants a piece of paper that says that the Laws of Victoria apply to Aboriginal people.
The position of the office of Public Prosecutions, is that the laws of Victoria apply to all people in Victoria, as your Honour has pointed out to him. That's the prima facie position and if he wants to challenge that, that's his right. But it would be better for him and, indeed, anyone else if he sought proper legal advice in relation to the matter, because if he's right, and he might be, I don't know, but if he's right, it's a matter that needs to litigated very carefully, rather than just doing it in an ad hoc fashion, Trying to restrict or focus a tribunal's attention on the deficiencies in the Drugs, Poisons and Controlled Substance Act.

HON. I'm Still not sure where we go from here, Mr. McDonald, what - - -

OPP. I don't mean to cut across Your Honour, but can I suggest this, the reality of the situation is that it's unlikely to be reached in the next sittings because, as I understand it, there are a number of matters that have priority and I've already discussed this with Mr. McDonald and indicated to him that the likelihood is if he wants to run this argument, it won't occur until next year, The next sittings of this court commences- the first 2010 sitting commences in mid-January, the 18th, I'm told and it would take place in the list with whatever other work is in the List. I've indicated that to him - - - .

HON. It would almost, inevitably, be matters with this priority by the end, in the sitting. I notice that, actually, it was Bendigo Police who were involved. I'm not quite sure- I've read the history of it, their Horsham and St Arnaud and all sorts---

ACC. I've been around---

HON. It seems to have been all around Western Victoria, this case, but I'm not really sure why it didn't start and finish at Bendigo, but we'll - I'm just---
Mr. Cordy. It sits in a geographical location, which is pretty close to the border.

ACC. It is on the border, yes.

OPP If I could put it that way, Bourke's place, near Marybourough.

ACC. Well, I'm- just near Marborough, but really just near St Arnaud.

HON. Could you just wait one moment, sorry. Yes, sorry, I was just having something looked up.

OPP. Yes, as I understand it, Your Honour, the alleged offences near Maryborough, which, geographically, is a bit to the west of a straight line between Ballarat and Bendigo and initially went to St Arnaud, ended up going to---

HON. It seemed to be the Inglewood Police involved and that seemed to me to ring bells about being closer to Bendigo, but I'm not geography expert either, as to how these matters move around Victoria.

HON. It's in the list here and there are judges sitting in the list, most months of the year, so it's likely to get on here as - either here or Melbourne, I mean, there's really the other - Bendigo, there wouldn't be as many sittings as Ballarat, I don't think.

OPP.I think there probably is, Your Honour, but I don't know that would ---

HON. That probably won't solve the issue of it getting on. All right, what I would like - I've tried, this morning, because, I had several - not just this one, but there are some other matters
I needed to talk to the coordinating judge, for this region, about and I wasn't able to get hold of him before coming into court, I'll keep trying during the day.

The option is, I simply leave it on the list or I have it on for a brief mention, again, before the end of next week, if I've managed to find out whether it can be slotted in to a particular timing, it would enable this issue to be run.

Mr McDonald, you say , you want to call witnesses, including ministers to get ministers to come to court to give evidence, it's certainly possible , but it usually takes some co-ordination and careful thought about whether they're really the people who you want to call or to give evidence and, again, Mr Cordy has raised what I raised with you earlier, the issue about getting legal representation. Because, if you want to run this as a test case, on whether the Parliament of Victoria has the jurisdictional power to legislate laws that cover Aboriginal people, I'd have thought it needs some careful planning by people experienced in the law. I'm not overlooking your experience- - - -

ACC. No, I just know it's simpler too.

HON. - - - in your community and of life, but the legal issues are very specific and would add what evidence may or may not be needed to substantiate them and to properly frame the arguments, you might like to - yet again, I'll indicate, you should consider if you want to run that argument, you should carefully consider getting legal advice.

ACC. Well, I probably will, but, Your Honour, I had a fall out with the legal profession many years ago, you know, I've lost a lot of - - -

HON. You might like to try them again. If it was many years ago, you might find there's a new- - -
ACC. Well, I hope so.

HON.- - - new people involved with a different approach.

ACC. Yeah, I'm not being rude, but, you know, little things that- I mean, I don't know- it was sort of- I realised that the legal profession make a view by about of- the law. When you've got a law where people build their income around it, it's very hard to change that law. You know, because there's losses and people have got- - -

HON. That's one side of it , but as I said to you, there are entitlements to apply for Legal Aid- - -

ACC. I think I- - -

HON. - - - and I've given you the information about that. If you want more information about Legal Aid, that's - - -
I very appreciate it, too.

HON. I know brochures are available downstairs. Those matters- finance, alone, shouldn't be what stops you getting legal representation. As I say, ultimately, it's your decision, but if you want to run an issue that deals with the jurisdiction of the Parliament of Victoria, it probably needs some experienced- - -

ACC. I think- - -

HON.- - - in the law to put the case- - -

ACC. I'll keep that in mind.

HON. All right- - -

ACC. But- - -

HON. What I- the options are, I don't think it can be run in this circuit, although, it's an interesting issue that I might've liked to hear, but I've got a lot of other cases still to get through this, we finish this circuit at the end of the week. It doesn't seem realistically that next month has a list with a number of priority matters. So, it will probably go over into next January sittings- - -

ACC. All right.

HON. - - - and you'll get notice of whether it's likely to b reached then, but what I will do is, talk to the judge- it's no longer Judge Chettle, it's now Judge Parsons, who co-ordinates this region and I'll talk to him about seeing if this can be given some specific dates, somewhere to see if those who might need to - - -

ACC. It would be appreciated.

HON. - - - involved in it's preparation can know, but I pre-warn you, from experience over many years, if you want to call people like Ministers of the Crown to give evidence, there needs to be a fair bit of notice and co-ordination with when this needs- - -

ACC. I'm trying to get them- - -

HON. To bring them to court- - -

ACC. I'm sorry I'm trying to get them to put it in writing. I mean, because it's no good putting all this burden out over all the people we've got going. If they don't know about the law properly, the ministers, I mean, well, I've done this honourable and given plenty of time. I'm not- not that I've just come up with this rave or this little bit of grass I got, the jurisdiction question, but you can see, I've tried to explain to my government then, I've not hidden it- hiding anything.
All they have to do was take the jurisdiction question into account, because all of the documents were forwarded to the ministers and all that and instead of putting the burden on the court, we've got the government saying, oh well, here we go, we've got something amiss here.

HON. Well, see, another aspect of the governance of Australia is that there's a, what they call, separation of powers between the- - -

ACC. Yes, the court, I know.

HON.- - - Parliamentary wing and the court system. So it's not for the ministers to say that this person shouldn't be prosecuted. They leave- they have to step out of whether it- the question of whether a particular person is prosecuted and leave that to the justice system, which includes, ultimately, the courts.

ACC. Yes.

HON. First of all, the independence of the Director of Public Prosecutions, and then the courts and you won't have ministers- I hope you won't have ministers stepping in and saying, Mr. McDonald shouldn't have been prosecuted.

ACC. I don't know if they'll do that, I just want to- to be accountable for the law. I mean, they're running this state and they know 10,000 people a year, I can't even imagine- oh it's gone down to 9,900 something last year, but I can't see why they've got this suppression of putting the burden on the people. If anyone ever died from cannabis, I wouldn't be here.

HON. I'm not going to enter into that argument with you, but it seems to me , your argument covers all people in Victoria, not just Aboriginal people.

ACC. Well, I'd like to think so, because- - -

HON. That's another thing to think about, as to whether this issue, you want to run, is what your real issue is or whether your real issue is, you don't think the use of cannabis should be illegal.

ACC. I'd like to think- I've spent, as I say, over 36 years and I didn't smoke in the early days, I had to run a nightclub in Melbourne and all that.

HON. Well- - -

ACC. So, it's a battle. I'm getting too old now, I'll probably be dead before this case comes up.
HON. You never know, it might be time for me to come back to Ballarat before this case gets on, but I'm not in Ballarat early next year, so whichever judge is sitting, we'll hear the case, unless it gets transferred elsewhere. I will leave the case in the list.

ACC. Right, thank you.

HON. I will see if I can bring it to the attention of the listing judge, so that it may get reached, sooner rather than later, but I strongly advise you to consider, if you want to run that argument, getting legal advice, and if you decide it's not the right test case to run that argument on, get in touch with the prosecution and see if there can't be some middle ground reached about it, because- - -

ACC. Well, thanks, I just- - -

HON. - - - I stress again, it's not the quantity that was involved, but whether it was that amount or some lesser amount, as you might argue- - -

ACC. Yes.

HON. - - - wouldn't normally come to the County Court.

ACC. Right. I'd like to thank you very much for listening to me, it's a nice pleasure.

HON. All right, it's been interesting, Mr McDonald.

ACC. Thank you.

HON. Thank you, you can leave the court now.

OPP. I wonder if your honour would, perhaps, stand down for a few minutes, so I can have a quick word with- - -

HON. Yes, I'll leave the Bench and stand the court down for a few minutes
And ENDS here

The following is a copy of the letter to the Court that her Honour read. dated
Registrar’s OfficerBallarat
County Court Re:- Case Number X00340105100
Grenville St Ballarat 3350 27th October 2008

Dear Sir/MadamI have your letter of the 20 October 2008, which raised the issue that your records disclosed that I am have no legal representation, by way of respect and courtesy to the Court, I offer in concise form the following explanation.

December 1979 I attended my solicitors office, present were a well known land developer, and the person that recommended the legal firm to me, Shortly after my solicitor informed me that he will take every thing that I had, and their was nothing I could do about it, Nothing he shouted nothing you can do will stop us.Arrogantly claiming that the (mick) Judges were stupid.

They three would break into a foreign language, then claiming that "We run this country not the Government" .."wait till the year after 2000 you will see how good we are" after about twenty minutes of this abuse, I shook hands, and said to them well go for it then.It is still unclear to myself as to what party was meant by "We run this country not the Government" was it referring the Legal Profession, or foreign organisation, whose main aim may not necessary rest in the best interest of the Australian people.

As I was deeply concerned about these threats made, by way of precaution by September 1980, I had raised my concerns with the appropriate authorities, including the Law Institute and Corporate Affairs, as my family companies Brogil Enterprises Pty. Ltd and Kamball Enterprises Pty Ltd had asset's, real estate of substantial value.

As a conspiracy to fraud began to appear implicating my solicitor and my business consultant I found need to engage another firm of solicitors, after a short time it was obvious that this solicitors had joined the others in the conspiracy, as yet another property had been removed for from my estate. Once again I engaged a new law firm to take action and act on my behalf.

I need not express my disappointment in his conduct , as yet another property Parma House Hepburn Springs was removed from my dwindling estate. Endeavouring to clarify things, I attended the office of the former Attorney-General Jim Kennan, he informed me he was aware of the situation, but the Government had little control over the matter at present and was trying to rectify the cause of the problem.

I also raised my concerns with Liberal Attorney-General, Jan Wade, Later the Lay Observer Jan King. During 1993 was the last time that I engaged a member of the Victoria Legal profession, subsequently his performance confirmed the legal vendetta against myself continued.

I realised that there are many Legal firms in Victoria that act in their clients best interest in an open and honest way, I humbly apologise to any Legal firm or members of the Judicial system of Victorian that I may have offended over the last twenty years or so.

I trust the above will satisfy Court as to show cause and reason why I have no Legal representation in the current matter before the Courts.

Yours sincerely, Les McDonald

question of jurisdiction

The County Court Ballarat File No. CR-08-01796
In the matter of Leslie Ernest McDonald and
To the Officer of Public Prosecutions, Re:- Case conferences November 26th 2009
Re:- Request, (as to assist the Court)

The Defendant has filed and placed before the Honourable Court copies of the following correspondence:-

6th August 1996 Aboriginal Embassy Victoria to Scrutiny of Acts and Regulations Committee, "I write to request a copy of the "Current Act" the gave the Victorian Government power to make laws for peace order and good government for the Indigenous people. "

26 August 1996 from the Scrutiny of Acts and Regulations Committee, to Les McDonald Chief Justice, Aboriginal Embassy Victoria, " I am unaware of any Act which gives the Victorian Government the Power to make laws for peace, order and good government for indigenous people. Signed Helen M. Mason Executive Officer."

The Defendant maintains that the above (as evidence) verifies and leaves open to question if The Victorian Parliament has any lawful jurisdiction to make laws for the Indigenous People of Victoria.

The Defendant maintains, The Victorian Constitution Act 1975. Part 11 "The Parliament 16. Legislative power of Parliament "The Parliament shall have power to make laws in and for Victoria in all cases whatsoever." makes no mention of the Aboriginal people of Victoria, therefore has no proper standing or meaning to the Aboriginal People of Victoria.
Constitution Act 1975. 2. Existing laws. to:-

(2) All courts within Victoria and all offices judicial administrative or ministerial there in and all charters legal commissions powers and authorities except insofar as the same may be abolished altered or varied by or may be inconsistent with the provisions of this act or are abolished altered or varied by any Act or Acts shall continue to subsist in the same form and with the same effect as if this Act had not come into force.

The Defendant maintains the doubt surrounding the Constitution Act 1975, and leaves open to challenge the Courts of Victoria jurisdiction over the Natives -Aboriginal People.

3. Laws of England to be applied in the Administration of Justice.

(2) If any doubt arises as to the application of any such laws or statues in Victoria, it shall be lawful for the Parliament be Act to declare whether such laws or statutes shall be deemed to extend with in Victoria or to make and establish such limitations and modifications of such laws and statutes within Victoria as may be deemed expedient in that behalf.
Cont.2

The Defendant maintains, that Parliament has been made made aware of the doubt of such laws or statues in Victoria (1996) and as yet have not declared whether such laws shall be deemed to extend to the Aboriginal natives of Victoria
The Pacific Islanders Protection Act 1875

6. Power for Her Majesty to exercise jurisdiction over British subjects in islands of the pacific ocean. to erect a court of justice for British subjects in the islands of the pacific. to make ordinances.

"It shall be lawful for Her Majesty to exercise power and jurisdiction over her subjects within any islands and places in the Pacific Ocean not being within Her Majesty's dominions, nor within the jurisdiction of any civilized power, ...to make regulations for the Government of her subjects in such islands and places, and to impose penalties, forfeitures, or imprisonment's for the breach of such regulations"

"It shall be lawful for Her Majesty, by order in council to create a court of justice and civil, criminal and Admiralty jurisdiction over Her Majesty's subjects within islands and places to which the authority of the said High Commissioner shall extend, and with power to take cognizance of all crimes and offences committed by Her Majesty's subjects within any of the said islands and places, or upon the sea, or in any haven, river, creek, or place within jurisdiction of the Admiralty. and Her Majesty..."

The Defendant maintains that the above Act, which is still valid and adhered to by the Court of Victoria only relates to Her Majesty Courts jurisdiction over her Majesty's subjects .
The Defendant preys that the Office of Public Prosecutions address the questions of Law in a proper, reasonable, and truthful manner, as expected by Her Majesty's Courts and the citizen's of Victoria.

This ends the request by the Defendant which is intended to handed to the duty officer of the Office of Public Prosecution, on the aforesaid Ballarat County Court date.


Signed ----------------------------------
Leslie Ernest McDonald

Novenber report

The Statewide Indigenous Forum initiated by the Aboriginal Justice Forum, the peak coordinating body for overseeing the development, implementation and direction of the Victorian Aboriginal Justice Agreement. The AJA recognised that, for it to succeed, Koori communities needed to be involved in decision making and delivering culturally appropriate justice services.

2000-2004 The Victorian Aboriginal Justice Agreement (AJA) is part of a broad policy by the Victorian Government to work in partnership with the Koori community. Its purpose is to tackle disadvantage and inequity, reduce Koori contact with the criminal justice system, and improve the justice process for Indigenous Victorians.

The second phase of the Victorian Aboriginal Justice Agreement Phase 2 (AJA2) represents a recommitment by the signatories to the AJA to build on the work of the first phase (launched in 2006) The Regional Aboriginal Justice Advisory Committee (RAJAC) was established in each of seven regions to help improve justice outcomes. 2006-2010 RAJAC Chairs are members of the Victorian Aboriginal Justice Advisory Committee (VAJAC), which in turn is represented at the Aboriginal Justice Forum (AJF), the peak body responsible for overseeing implementation of the AJA. After four years of operation, the AJA was reviewed and the Victorian Government and Koori signatories recommitted to a new phase, the Victorian Aboriginal Justice Agreement Phase
2 (AJA2).

2009 Wednesday 11 March "COMMUNIQUÉ" Presented by Victorian Aboriginal Community to the Victorian Government, There is some concern over the wording present by Victorian Aboriginal Community, It has been suggested the wording should read Presented by Victorian Incorporated Aboriginal Community. As the document has no signatories, although it does make mention for over 50 Aboriginal organisation that were invited to the Statewide Indigenous Forum.. (Whom attended is unknown to this writer, at this point in time )

Looking back to 1996, To when Aboriginal Embassy Victoria found urgent need to clarify, if The Victoria Government had the proper legislated power to makes Laws for peace order and good government for the Indigenous people of Victoria, and on the 26 August 1996 the Scrutiny of Acts and Regulations Committee E.O Helen M Mason, (in reply) wrote, "I am unaware of any Act which gives the Victorian Government the power to make Laws for peace order and good government for Indigenous people" Which clearly clarified the issue at hand.

The Department of Justice, tries to overcome the courts "No Jurisdiction" question, skillfully laid out the foundations for the "Koori Court project" Where the accused must acknowledge the court jurisdiction and plead guilty. in many case's acceptable. However when the offence has caused no harm., damage, loss of property, to any person or parties, "Victimless Crime" Aboriginal traditional religion, lore and must be considered and respected by the Court's.

Taken from Attorney-General, Rob Hulls (Foreword) "The Agreement would be nothing without the work people on the ground or without the work of those who have dedicated themselves to cementing the relationship that now exist between government and Koori communities, as. I look forward to discovering what more we can achieve when together, we engage work hard challenge each other and walk the path of genuine Reconciliation"

The above mention Treaty (Agreement) mainly relies on Regional Aboriginal Justice Advisory Communities (RAJAC.s) to hear the voice and concerns of the people residing with in their region, and in turn pass up to the Victorian Aboriginal Justice Advisory Committee, (VAJAC) whom then places the issues before the Victorian Aboriginal Justice Advisory Forum, (VAJAF) if approved, hands up to the Attorney-General, and other concerned Minister including the Minister for Aboriginal Affairs for consideration and response.

It appears, one of the major challengers ahead for RAJAC's, is reducing the rate of Indigenous adult incarceration which still remains unacceptable, and to prevent the younger population for coming in contact with the criminal justice system of Victoria. It may help to address the situation, if our traditional lore was revisited, explained to the younger generation and to the wider community, as simplicity is the most convent way to the truth.

As to assure confidence in this plan, RAJAC's officials must, with out their own personal feelings, understanding, or religious beliefs, acknowledge and respond to all matters raised by members of their region, as being done in the best interest and future well-being of the Aboriginal communities of Victoria.. and

"2. Commit to working work all levels of government to never again allow the mistakes of past government administrations that excluded indigenous input into policies for which generations of our people paid the price for." (Ref COMMUNIQUÉ 16-17 OCTOBER 2008)

Accountability is now a must for all of us.

Yours faithfully
Les McDonald
Chief Lore Officer

Love and Law

Hi Sandra, In regards to news article in the Melbourne Age (14/09/09) by Lindsay Murdoch, It appears a that a young couple met at a sports meeting in 2006 at Papunya an Aboriginal community near the edge of the Northern Territory's western desert, and soon after applied for permission to marry, Under complex inter-marriage rules which Aboriginal people have abide by for centuries, as their skins were compatible, they were granted permission to marry which they did. Some time later the wife gave birth to a baby Boy.

As when soldiers and police start arriving in remote communities in 2007 under the intervention program, Like all proud mothers showed the baby to the Police, when asked, she proudly named her husband as the farther of the baby. The police then arrested him and he was placed in Jail many months. The Husband quite bewildered, had been informed that he could be sentenced to Jail for sixteen years for breaking the law. He was advised to plead guilty, which he did.

He appeared before Justice Southwood in the Supreme Court in Alice Springs. The Court referred to the husband as AK because he could not be identified. "Justice Southwood Said the case was difficult, but he recognised that a 14 years of age was too young for girls to be making decisions about sexual intercourse.

Judge Southwood acknowledged that Ak was sixteen years old at the time of the offence, and that AK was an impressive young man, with a good record and good work history, Justice Southwood, warned that "Young men in Aboriginal communities must learn that the wider community strongly disapprove of such relationship of such crimes. Justice Southwood convicted and sentenced AK two years and three months Jail.

I point out today in remote Aboriginal communities, the children are not registered at birth, and English is the third or fourth language. Traditional (law) Lore and religious is still maintained and practise in these outback communities. Lore of nature. When a girl turns in to a women then may wait for a mate?

In the communities mind nothing had been done Bad, they loved each other, had approval from both lots of parents and the community in general, they are married and have a baby, now it's our future and respect our Lore.

In his wisdom "Judge Southwood suspended the sentence forthwith, meaning the now convicted boy (AK) was released from custody and could legally be reunited with his wife,(now sixteen) and their son, in the world they know" ...Traditional Lore or ??

Consider the amount of time AK spent in prison, this causing unrest with the community, as reported " NT police would have turned a blind eye to the fact the boy had sexual intercourse with a fourteen girl because it accepted in aboriginal culture" It appears the case was to highlight the ongoing intervention program, is working?

If you consider the hardship and mental strain suffered by AK, his wife, family, and the wider aboriginal community, whom uphold their Lore, In fairness to all, I ask

1.Should AK be compensated for the time that he was in custody.

2.should Aboriginal Lore customs, religious believe be recognised by the Judicial system of Australia. if not why not.

Your Response greatly appreciated
Les McDonald

Whats that burning

Frying of Ian Ward
Ian Ward (the deceased) was a 46 year old Aboriginal male who died on 27 January 2008 at Kalgoorlie District Hospital, Kalgoorlie, in Western Australia At the time of his death the deceased was in custody, having been arrested by police in relation to traffic offences while driving a Toyota Personnel Carrier on Alderstone Street, Laverton, at about 9:30pm on Saturday 26 January 2008.

The following day the deceased was transported by employees of GSL Custodial Services Pty Ltd (GSL) in the back section of a van. The van was a Mazda E2500 vehicle registration number 1APR-049 The deceased was transported in the vehicle from Laverton to Kalgoorlie, a distance of approximately 360 kilometres. The deceased was taken on a journey of approximately 3 hours and 45 minutes on an extremely hot day with the outside temperatures being over 40oC. With no working air Conditioning

Evidence at the inquest subsequently revealed that the burn had been caused by contact between the deceased’s flesh and the metal steel pod in which he had been held in custody. At the hospital, Dr Lucien Lagrange, stated that as he opened the doors to the pod, although external conditions were very hot, the air from the van was "…like a blast from a furnace"
Based on the pathology evidence, there is no doubt that the deceased died as a result of being subjected to conditions of grossly excessive heat over an extended period of time. It is now clear that the deceased suffered a terrible death while in custody which was wholly unnecessary and avoidable.

Both Ms Stokoe and Mr Powell were contacted by telephone by Ms Jenkins late on the evening of 26 January 2008 and asked to transport a prisoner from Laverton to Kalgoorlie on the following day. They were to be paid at double time for working on a Sunday.

In would be within reason to assume both Ms. Stoke and Mr Powell had a duty of care towards Mr. Wards. As Mr Powell had been an insurance assessor for motor vehicles for 25 years, of the two, Mr Powell was far more experienced as a custodial officer as he had worked for either AIMS or GSL since 2001 and had been a supervisor for a period of time in 2003-4. Ms Stokoe had worked for GSL since April 2007. This was the first occasion on which she had worked as a custodial officer. She had previously worked as an industrial paramedic on a mine site and had some training qualifications to perform that role.

Time and experience has shown, that people given power over others, be it Police, custodial officer or others will at times abuser this authority, I personal feel that the W.A. courts should act according in punishing Mr. Powell and Ms. Stokes, as to show our public servants that this sort of conduct is no longer expectable by the majority of Australian’s.