20160202-schorel-hlavka o.w.b. to county court of victoria-re buloke shire council...

8/20/2019 20160202-Schorel-Hlavka O.W.B. to County Court of Victoria-Re Buloke Shire Council -APPEAL-15-2502-ADDRESS t…

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Page 1 (Revised format) AP 2502 Hearing date 22-2-2006 (or alternative date if allocated)

p1 2-2-2016 Hearing date 22-2-2016 Ballarat venue Mr G. H. Schorel-Hlavka O.W.B. Appeal 15-2502Deponent: Mr G. H. Schorel-Hlavka O.W.B. 107 Graham Road, Viewbank 3084, Victoria [email protected]

(Buloke Shire Council) Prosecutors legal representatives ES&a Lawyers

ADDRESS TO THE COURT (Written submissions)

County Court of VictoriaBallarat venue (and/or alternative venue)

Cc: Elliott Stafford and Associated [email protected] Andrews Premier Victoria [email protected] Mr Martin Pakula, [email protected] & [email protected]

Reference AP 2502 Buloke Shire Council for State of Victoria (s114 of the constitution) v Schorel-Hlavka

Sir/Madam,as a (retired) Professional Advocate I have spent a lot of time researching

Authorities, knowing too well that the High Court of Australia in its early days had its judgmentsriddled with references to foreign jurisdictions Authorities, in particular relating to the U.S.A. Asa CONSTITUTIONALIST I am however aware that one has to be very careful to not take allAuthorities as gospel. One has to carefully consider each Authority and so as to how it may fitwithin the constitutional context and so embedded legal principles of the Commonwealth ofAustralia Constitu tion Act 1900 (UK)Further below I will set out an explanation of the ADDRESS TO THE COURT being writtensubmission to the court and why it has been endorsed by appellate courts in successful appeals,

as well as used in the High Court of Australia.It may be extra ordinary that an Appellant would challenge the jurisdiction of the court to hearand determine the appeal the Appellant filed by this removing the jurisdiction of the court to hearand determine the appeal but having to consider the OBJECTION TO JURISDICTION as theonly issue before the court, but legally there is nothing wrong in this. After all, if the“jurisdictional hearing” were to conclude that the court cannot invoke jurisdiction because the

orders appealed against were issue without the magistrates court of Victoria at St Arnaud havinginvoked jurisdiction then I have achieved what I did set out to do and have a judgment that

basically nullifies the purported 17 September 2015 orders..

I will with the same email which is used to forward a copy of this ADDRESS TO THE

COURT also the audio transcript I had to pay for of the 17 September 2015 hearing before theMagistrates Court of Victoria at St Arnaud..

I challenged the validity of the St Arnaud venue also as it is not the proper venue regardingBerriwillock, where the alleged offence was claimed to have occurred as this is Swan Hill or nearmy residential place in Heidelberg (due to water damage to the Heidelberg venue the MagistratesCourt of Victoria in Melbourne City (William Street) is an alternative venue. It is an absurditythat I having OBJECTED TO THE JURISDICTION of the Magistrates Court of Victoria at StArnaud now am forced to travel to Ballarat as this rewards the wrong doer Buloke Shire Counciland its legal representatives instead of ruling according to law. The fact that the MagistratesCourt of Victoria at St Arnaud disregarded my OBJECTION TO JURISDICTION on both

hearing days cannot overcome that it never invoked jurisdiction.In my view the “jurisdictional issue” should be a Melbourne venue hearing and not Ballarat. TheFact that His Honour Mullaly J issued His Honour Mullaly J orders before finally consideringthe ADDRESS TO THE COURT containing my submissions including the OBJECTION TOJURISDICTION cannot be deny me my legal rights. His Honour Mullaly J as such neverinvoked jurisdiction.Any attendance by me to a court venue therefore is not intended and must neither be

perceived to relinquish my objections. I persist in my rights unabated.

It must be clear from what is set out below that I am not nor can be deemed to be prepared forany De Novo hearing, besides I submit no legal power exist to proceed with a De Novo hearingwhere the court omitted to invoke jurisdiction.

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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I have never been served with a proper “full brief” despite my 27 October 2015 written requestfor this regarding the 17 September 2015/20 August 2015 hearings.It may be a legal requirement but it appears obvious that Buloke Shire Council and aided with itslegal representatives couldn’t give a darn about the rule of law as they so to say seem to have thecourt as a puppet on a string to do as it is told.I do not have a copy of the court file nor was despite various request provided with sealed ordersand had to file an appeal without having any proper information as to the precise orders or betterto state purported orders of 17 September 2015.

And I will now also quote the 17 September 2015 ADDRESS TO THE COURT that was filed before hand by way of 16 August 2015 email

QUOTE 20150816 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud cc ES&a LA-05-06-ReBuloke Shire Council- LSC-COM-2015-0873

Magistrates Court of Victoria at St Arnaud 16-8-2015c/o the coordinator [email protected]

Cc: Elliott Stafford and Associated [email protected]

Buloke Shire Council [email protected]

Daniel Andrews Premier Victoria [email protected]

George Williams [email protected] Reid Mather (Mayor) MALLEE WARD [email protected]

Cr David Pollard (Deputy Mayor) LOWER AVOCA WARD [email protected]

Cr Leo Tellefson MOUNT JEFFCOTT WARD [email protected]

Cr Stuart McLean LOWER AVOCA WARD [email protected]

Cr Graeme Milne MOUNT JEFFCOTT WARD [email protected]

Cr Gail Sharp MOUNT JEFFCOTT WARD [email protected]

Cr Ellen White, MALLEE WARD, [email protected]

Re: 20150816 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud

cc ES&a LA-05-06-Re Buloke Shire Council- LSC-COM-2015-0873

Sir/Madam,

I indicated to (Buloke Shire Council) the prosecutor ‘s legal representatives to have the

matter without conceding jurisdiction transferred to the Magistrates Court of Victoria atHeidelberg, which is about 4 kilometres from my residence, also considering that ES&a Lawyersare located in Clifton Hill (Melbourne).

Due to health conditions concerning my wife as well as myself having become ill it is unlikely Icould attend on 20 August 2015 to the court in St Arnaud. I request hereby that the matter,without that I concede jurisdiction is transferred to the Magistrates Court of Victoria at

Heidelberg. I may also raise the issue that St Arnaud’s court location only sits on Thursdays,whereas at Heidelberg I understand it sits every day. As I enclose hereby a copy of myADDRESS TO THE COURT that includes an OBJECTION TO JURISDICTION then thematter could in my view not be heard and determined on 20 August 2015.

I submit that it wouldn’t be appropriate to argue legal issues that may take more th an likely morethan a day in a court location that only sits once a week. It would be an injustice to because totravel time and time again to St Arnaud for this.See the document “20150820-ADDRESS TO THE COURT-in the matter Buloke Shire

Council v Schorel-Hlavka” that will be attached to the same email as this correspondence. I look forwards to your confirmation that the matter has been transferred to the Magistrates Courtof Victoria at Heidelberg and so the attached ADDRESS TO THE COURT.

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)

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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MAY JUSTICE ALWAYS PREVAIL®

(Our name is our motto! )END QUOTE 20150816 -Schorel-Hlavka O.W.B. to Magistrates Court of Victoria at St Arnaud cc ES&a LA-05-06-Re Buloke Shire Council- LSC-COM-2015-0873

QUOTE 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-Hlavka

ADDRESS TO THE COURTMagistrates Court of VictoriaAT: St Arnaud ( or alternative court location)

IN THE MATTER:Buloke Shire Council v Schorel-Hlavka

Hearing date 20-8-2015Sir/Madam,

I object to the jurisdiction of this court, as I indicated to Buloke Shire Council.As I have encountered in the past judicial officers who failed to understand/comprehend the legal

processes involved in an OBJECTION TO JURISDICTIONI I will attempt to explain this..In 1988 I relied upon a Supreme Court of Victoria decision that my then 2 year old daughter had

been wrongly arrested by Warrant, which the court held was in violation to the existing SupremeCourt of Victoria orders, as to sue the State of Victoria. At the hearing however counsel for theState of Victoria suddenly stated to object to the jurisdiction of the court. His Honour explained Ihad to prove jurisdiction failing this the case would go no further. I outlined the Courts previousfindings, the relevant State laws I relied upon, etc. His Honour however held that I failed to

prove the legislation was validly gazette, etc, and as such dismissed my case for want of jurisdiction. His Honour did make known that he could understand I would not be too pleasedwith this, but counsel didn’t have to disprove jurisdiction as merely to object to the jurisdiction

was placing the onus upon me to prove jurisdiction. Until that time I had been researching the

Commonwealth of Australia Constitution Act 1900 (UK) but now found myself confronted withwhat is referred to as the Victorian Constitution Act 1975.I accepted that His Honour facing an OBJECTION TO JURISDICTION was bound by law todeal with this matter first as to determine if the court had jurisdiction before it could consider anyother matter.I decided to research the Victorian Constitution Act 1975 and to my horror discovered it wasnamed “Victorian Constitution Act 1975” was not a constitution at all. It is merely an act of

Parliament.And this is where my knowledge regarding the Commonwealth of Austral ia Consti tution Act1900 (UK) is so important. This because the Framers of the constitution having provided for thatthe Colonies upon federation would become States embedded the legal principle:

HANSARD 10-03-1891 Constitution Convention Debates QUOTE

Dr. COCKBURN: All our experience hitherto has been under the condition of parliamentarysovereignty. Parliament has been the supreme body. But when we embark on federation we throw

parliamentary sovereignty overboard. Parliament is no longer supreme. Our parliaments at present are

not only legislative, but constituent bodies. They have not only the power of legislation, but the power

of amending their constitutions. That must disappear at once on the abolition of parliamentary

sovereignty. No parliament under a federation can be a constituent body; it will cease to have the

power of changing its constitution at its own will. Again, instead of parliament being supreme, theparliaments of a federation are coordinate bodies-the main power is split up, instead of being vested in

one body. More than all that, there is this difference: When parliamentary sovereignty is dispensedwith, instead of there being a high court of parliament, you bring into existence a powerful judiciary


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which towers above all powers, legislative and executive, and which is the sole arbiter and interpreter

of the constitution.

END QUOTE

Hansard 1-3-1898 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)QUOTE

Mr. GORDON.-Well, I think not. I am sure that if the honorable member applies his mind to the subject hewill see it is not abstruse. If a statute of either the Federal or the states Parliament be taken into court the court

is bound to give an interpretation according to the strict hyper-refinements of the law. It may be a good law passed by "the sovereign will of the people," although that latter phrase is a common one which I do not caremuch about. The court may say-"It is a good law, but as it technically infringes on the Constitution we willhave to wipe it out." As I have said, the proposal I support retains some remnant of parliamentarysovereignty, leaving it to the will of Parliament on either side to attack each other's laws.

END QUOTE

As I understand it the so called “Victorian Constitution Act 1975” is not a constitution oramendment of a constitution approved by the State electors, and therefore it cannot be reliedupon as a valid constitution.As the Framers of the Constitution made clear that the “sovereign” Parliaments of the colonies

would become “constitutional” Parliaments upon federation.

Hansard 2-2-1898 Constitution Convention DebatesQUOTE Mr. DEAKIN (Victoria).-

The record of these debates may fairly be expected to be widely read, and the observations to which I

allude might otherwise lead to a certain amount of misconception. END QUOTE.

HANSARD 17-3-1898 Constitution Convention Debates QUOTE

Mr. HOLDER .-I hope that the time which was spent in Adelaide was as pleasant to the visitingrepresentatives as the time which we have spent under the care and hospitality of the Government of Victoriahas been to us. I think that a word is due to those who have laboured, not merely to make our stay pleasant,

but to assist us in accomplishing that which we have had in view. Speaking for myself, I consider that thereporting of our debates has been remarkably good. There has hardly been the need of even trifling verbal

alterations, and the way in which the speeches have been reported, transcribed, and committed to print has[start page 2494] left nothing to be desired. I am quite sure that in the permanent record of our proceedingswe have a document entirely worthy of the purpose we have in view.

END QUOTE

Hansard 8-3-1898 Constitution Convention Debates (Official Record of the Debates of the National AustralasianConvention)QUOTE Mr. ISAACS.-

We want a people's Constitution, not a lawyers' Constitution. END QUOTE.

Hansard 19-4-1897 Constitution Convention Debates QUOTE

Mr. CARRUTHERS: This is a Constitution which the unlettered people of the community ought to be able to understand.

END QUOTE.

Hansard 21-9-1897 Constitution Convention Debates (Official Record of the Debates of the NationalAustralasian Convention)

QUOTE

The Right Hon. C.C. KINGSTON (South Australia)[9.21]: I trust the Drafting Committee will not fail toexercise a liberal discretion in striking out words which they do not understand, and that they will put inwords which can be understood by persons commonly acquainted with the English language.

END QUOTEEND QUOTE 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-HlavkaAnd

QUOTE 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-Hlavka


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I do not accept that this court can grand the summons to be withdrawn, for that unless it dealswith the OBJECTION TO JURISDICTION first, this as it has no judicial powers to invoke toallow for the summons to be withdrawn..

As this is an OBJECTION TO JURISDICTION the court cannot take any plea.

As the Magistrates Court of Victoria at St Arnaud only sits one day a week it would beinappropriately to have matters heard at the St Arnaud’s location, as matters will likely be

tasking more than one day.END QUOTE 20150820-ADDRESS TO THE COURT-in the matter Buloke Shire Council v Schorel-Hlavka

There can be absolutely no doubt about it that I file for legal proceedings an ADDRESS TOTHE COURT containing written submissions and did so (where I notified all parties and thecourt) that I was too ill to travel what I submitted, including the OBJECTION TOJURISDICTION and it all is silent to any evidence of the prosecutor or any witness it proposedto call because to my knowledge I was never served, as is statutory required, at least 14 days

prior to the hearing with a “full brief” and even despite my written request of 27 October 2015and His Honour Mullaly J orders of 30 October 2015 to post such a full brief by no later than 9

November to me via Australian Post this never eventuated. As such, I have no clue what precisely was filed with the court.I was purportedly provided with a full brief indicating an 18 March 2013 hearing date which isabsurd considering it was dated 25 November 2015.

Again, where somehow Buloke Shire Council seeks to rely upon a witness and upon alleged photo’s which were to my understanding never filed with the Magistrates Court of Victoria at StArnaud and so prevented me to challenge and as such denied me then any proper preparation ofin response then obviously it may appear to a FAIR MINDED PERSON that the courts are nomore but a tool for the prosecutor, and its numerous violations of legal requirements aredisregarded, no matter my objections to it.Ordinary a party who fails to file/serve in time is required to seek “leave to file and serve out oftime” and as set out below the court must consider relevant issues if such leave is to be granted.Well Buloke Shire Council couldn’t give a hood about the court because so to say it has it in its

pocket and as proved even His Honour Mullaly J didn’t question Counsel purportedly appearing

for Buloke Shire Council what on earth he was doing appearing when no Notice of appearancewas filed with the Court, nor served. If I on the other hand was to have made any kind of error itlikely would have been fatal to my litigation.

As author of books in the INSPECTOR-RIKATI® series on certain constitutional and otherlegal issues I can assure you that these proceedings and the surrounding nonsense will be

prominently exposed in my forthcoming book.I do not fear the courts because I have not been guilty of any wrongdoing no matter what BulokeShire Council may purport. One can only ascertain the guilt of innocence by the proper

application of the rule of law (as set out below) and if anything Buloke Shire Council and itslegal representatives have been making overtures to seeking to disregard the rule of law time andtime again to what I consider to be of criminal conduct. And regretfully the courts in the processappears to be aiding and abetting in this..

Authorities of foreign jurisdictions are as quoted below merely of “persuasive weight” where nolocal authority may be available, or may be of complimentary “persuasive weight” to existing

Authorities. Having stated so Authorities that are enshrined in Australian law because they were part of English law with the settlers obviously are as much binding as other Australian generatedauthorities.

http://caselaw.findlaw.com/wi-supreme-court/1491020.html Supreme Court of Wisconsin.

http://caselaw.findlaw.com/wi-supreme-court/1491020.htmlhttp://caselaw.findlaw.com/wi-supreme-court/1491020.html


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Walter J. OLSON, Plaintiff-Appellant, v. TOWN OF COTTAGE GROVE, Defendant-Respondent-Petitioner. No.2005AP2257. Decided: May 30, 2008QUOTE

¶ 87 Although the WEAC II court of appeals reversed the circuit court's judgment on the basis thatthe first two conditions of a justiciable controversy were unfulfilled as a matter of law,21 thestandard of review set forth by the court of appeals expressly applied to all four conditions of

justiciability, including ripeness.¶ 88 The majority opinion finds support for its conclusion that de novo review is proper in case lawfrom other jurisdictions.22 Case law from other states is merely of persuasive weight. Prior

Wisconsin case law is precedent. The approach the majority opinion should be taking is to followbinding precedent of this court or to explain why it is deviating from precedent.¶ 89 Applying the clear, binding precedent of this court and the court of appeals, I conclude that thequestion whether an issue is ripe for judicial determination under the Declaratory Judgments Actlies within the discretion of the circuit court and that this court should review the circuit court'sdecision to determine whether the circuit court erroneously exercised its discretion.¶ 90 For the reasons set forth, I write separately. -

END QUOTE

As I understand it there never was any “evidence” filed by the prosecutor in the MagistratesCourt of Victoria at St Arnaud then the court even if it were to somehow hold it can invoke

jurisdiction (not that I concede it legally can or will) then the purported evidence it now seeks torely upon in the full brief for the 22 February 2016 hearing cannot be permitted. Nor so any“evidence” from its claimed witness Mr Wayne Wall, this besides the alleged evidence having

been unlawfully obtained!.

QUOTE Braddock v Tillotson's Newspapers Ltd.; Court of Appeal (1949)(1950) 1KB 47 (1949) 2 ALL E.R.306;65 T.L.R. 553: 93 S.J. 464

Leave to call fresh evidence on appeal in relation to an issue will be granted only when the evidence couldnot reasonably have been discovered before the trial, and would probably have led to a different result.When the fresh evidence relates to the credit of a witness, its effect must be more certain.

END QUOTE

THERE IS AN OBVIOUS REASON FOR THIS ALSO THAT THE COURTS

WOULDN’T LIKE AN AVELANCHE OF APPEALS WHICH COULD HAVWE BEEN

AVOIDED HAD THE PROSECUTOR SO TO SAY REVEALS IT HAND DISCLOSINGALL RELEVANT DETAILS.

What legal practitioners could now engineer is to pursue orders without using any evidence perhaps knowing a crooked judge and then when a party appeals legitimately then it comes upwith purported evidence as to seek to railroad the appeal and so in the process cause unwanted

protracted litigation which for them is to make plenty of moneys of their wrongdoing.If therefore a prosecutor conceals relevant details from the court in the first instance than it mustnot be permitted to rely upon it on any appeal, regardless any hearing De Novo as it would be agross misuse of the legal processes and may cause a party to appeal which may have beenaltogether have been avoided had the Prosecutor from onset revealed all details. (Richardson

principle- see below)

The Court also should keep in mind

QUOTE Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278The oath of a justice of this court is ' to do right to all manner of people according to law' Our sworn duty isto the law itself and to the organic nature of the constitution first of all. If, then, we find the law to be

plainly in conflict with what we or any of our predecessors errornously thought it to be, we have, as Iconceive no right to choose between giving effect to the law, and maintaining an incorrect interpretation, Itis not, in my opinion, better that the court should be persistently wrong than that it should be ultimatelyright..Whatever else may be said with respect to previous decisions - and it is necessary here to consider the

principals upon which a court should act in particular cases - so much at least emerges as is undoubtedly beyond challenge, that where a former decision is clearly wrong, and there are no circumstances


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and a rule promulgated by this Court, viz, Rule 1.220(e) of the Florida Rules of Criminal Procedure, 33F.S.A. which became effective December 31st, 1967, and which was in effect when the case was tried in thetrial court below. This rule requires the prosecution, upon written request filed in the cause by the defendant,to furnish to the defendant a list of all witnesses known to the prosecuting attorney to have information whichmay be relevant to the offense charged, and to any defense of the person charged with respect thereto. Therule requires that the list be furnished by the prosecuting attorney within five days after receipt by him of thedefendant's offer to furnish to the prosecuting attorney his list of prospective witnesses with their addresses.

Paragraph (g) of the Rule provides that in the event either party fails to comply with any provision of the

Rule the court may impose certain sanctions against such party, including the granting of a continuance or the prohibiting of such party from calling a witness whose name has not been disclosed, or it may enter suchother order as it deems just under the circumstances.

The District Court held, in effect, that the record of the proceedings in the trial court disclosed that there wasnot strict compliance with the Rule by the prosecuting attorney in the disclosure of witnesses, as required bythe Rule, but that the record further disclosed that the petitioner (Appellant below) was not prejudiced byrespondent's (Appellee's below) noncompliance. By way of obiter dicta and as a guideline and warning forthe future, the District Court went on to say that in the future it will expect the State to comply with theFlorida Rules of Criminal Procedure, and that non-compliance "could very well require reversal or a newtrial."

We have jurisdiction to review the decision below because of the provision contained in Section 4(2) ofArticle V of the Florida Constitution F.S.A., (1968) which confers jurisdiction upon this Court to review adecision of a District Court of Appeal "which affects a class of constitutional or state officers."

The decision below reviewed the failure of the prosecuting attorney of the Criminal Court of Record of

Hillsborough County to comply with the discovery requirements of the Rule in question, and the effect

of such failure upon the validity of the trial in which the petitioner was convicted. In doing so it alsoreviewed the exercise of the trial court's discretion in refusing to grant petitioner's motion for mistrial basedupon the failure of the prosecuting attorney to disclose the name of a witness who, the petitioner claimed, hadknowledge of facts "relevant to the offense charged" and to the defense of the petitioner, and whose namewas required, in the view of the petitioner, to be furnished him by the express provision of the Rule. Thus thedecision of the District Court which holds that non-compliance with the discovery requirements of the Ruledoes not ipso facto constitute ground for reversal of a conviction even though it is made to appear that the

Rule has not been strictly complied with, and that such reversal depends upon whether or not the personcharged has been prejudiced by non-compliance, affects two classes of constitutional or state officers, viz,

prosecuting officers and trial courts in the exercise of their respective powers and duties in the prosecutionand trial of criminal cases.

It is true that the decision below was determinative only of the cause reviewed by the appellate court,

but the ultimate effect of it affects all prosecuting attorneys and trial judges in the trial of criminal

cases. This Court, in Florida State Board of Health v. Lewis, Fla., 149 So.2d 41, speaking of this particular provision of the Constitution, said:

The obvious purpose of the subject constitutional provision was to authorize this Court to review decisionswhich, in the ultimate, would affect all constitutional or state officers exercising the same powers, eventhough only one of such officers might be involved in the particular litigation. To like effect is State v.

Robinson, Fla., 132 So.2d 156. The decision below in the ultimate affects all prosecuting attorneys insofar asit interprets their duties in connection with compliance with Rules of Criminal Procedure promulgated by thisCourt, and all trial judges when called upon to interpret the effects of non-compliance by suchprosecuting attorneys. Its pronouncement presents to this Court the duty to determine if the District Court ofAppeal has properly interpreted the respective duties, powers and obligations of such officers under suchRules, and particularly Rule 1.220. We thus have jurisdiction, and now turn to the merits of the cause beforeus. In so doing we hold that the violation of a rule of procedure prescribed by this Court does not call for areversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice orharm to the defendant. All of the four District Courts of Appeal have now so held and we now place ourstamp of approval upon this principle. See Howard v. State, Fla.App., 239 So.2d 83; Wilson v. State,Fla.App., 220 So.2d 426, 427; Buttler v. State, Fla.App., 238 So.2d 313; Rhome v. State, Fla., 222 So.2d 431;Ramirez v. State, Fourth District, Fla., 241 So.2d 744, Opinion filed October 14, 1970. This is particularlytrue in view of the purpose of the Florida Rules of Criminal Procedure. As stated in Rule 1.020 of the rulesthemselves: These rules are intended to provide for the first determination of every criminal

http://www.leagle.com/cite/149%20So.2d%2041http://www.leagle.com/cite/149%20So.2d%2041


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proceeding. They shall be construed to secure simplicity in procedure and fairness in administration.

Furthermore, the Rule in question must be considered by an appellate court in pari materia with the

provisions of our harmless error statute, viz, F.S. 924.33, F.S.A. which provides that rulings or

proceedings in criminal cases that are not prejudicial or harmful do not require reversal. As stated inHoward v. State, supra: The cited statute is but a codification of the `harmless error' doctrine which has beendeveloped by judicial decision to avoid reversal in cases where it appears that justice has been served and thatin all probability a new trial with the same admissible evidence would not alter the end result. See Urga v.State, 155 So.2d 719, Fla.App., 1963, and cases cited therein. Therefore, petitioner's contention that theState's non-compliance with the Rule entitles him, as a matter of right, to have a non-listed witness excluded

from testifying, or to have a mistrial where it becomes evident during the trial that there existed a witnesswho probably had knowledge of facts relevant to petitioner's defense, is not tenable. The Rule was designed

to furnish a defendant with information which would bona fide assist him in the defense of the charge

against him. It was never intended to furnish a defendant with a procedural device to escape justice. Yet sucha result would be inescapable if the State's non-compliance with the rule necessarily required the exclusion ofthe non-listed witnesses from testifying, or a mistrial under the circumstance just stated. See Ramirez v. State,supra. On the other hand, if it is evident from the record that the non-compliance with the Rule by theState resulted in harm or prejudice to a defendant through failure to furnish the names of witnesses,

and such witnesses were permitted to testify in behalf of the State, or if it should affirmatively appear

that the State failed to furnish to the defendant the name of a witness known to the State to have

information relevant to the offense charged against the defendant, or to any defense of the defendant

with respect thereto, and the latter situation resulted in harm or prejudice to the defendant, an

appellate court reviewing his conviction must reverse. The trial court has discretion to determine whether

the non-compliance would result in harm or prejudice to the defendant, but the court's discretion can be properly exercised only after the court has made an adequate inquiry into all of the surroundingcircumstances. We think that the District Court of Appeal for the Fourth District has succinctly statedthe burden that the Rule places both upon the prosecuting attorney and upon the trial court in the

following quoted extract from its opinion in Ramirez v. State, supra: The point is that if, during thecourse of the proceedings, it is brought to the attention of the trial court that the state has failed to complywith Rule 1.220(e) CrPR, the court's discretion can be properly exercised only after the court has made anadequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scopeof such inquiry, we think it would undoubtedly cover at least such questions as whether the state's

violation was inadvertent or wilful, whether the violation was trivial or substantial, and most

importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for

trial. Once the court has considered all of the circumstances, it has authority to enter such order as it deems just. Rule 1.220(g) CrPR. However, in those cases where the court determines that the state's noncompliance

with the rule has not prejudiced the ability of the defendant to properly prepare for trial, we deem it essentialthat the circumstances establishing non-prejudice to the defendant affirmatively appear in the record. In thecases of Buttler v. State, supra; Richardson v. State, supra; and Newman v. State, Fla. 1967, 196 So.2d 897,the determination that the state's failure (to furnish the defendant with information on witnesses) was non-

prejudicial to the defendant appears to have been based upon the finding that such non-prejudice to thedefendant affirmatively appeared in the record. Our examination of the facts before the trial court bearingupon the issue of the State's noncompliance with the Rule discloses that the petitioner (defendant in the

trial court) complained, and now complains, about the State's use at the trial of the witness, John

Robert Davis, who had been jointly charged with the petitioner in the offense, and whose name was not

furnished to petitioner's counsel until the day before the trial as a State's witness. The name of this

witness was not given to petitioner's counsel by the prosecuting attorney at the time the latter

respondent to the petitioner's demand for the State's list of witnesses made several days before the

beginning of the trial. The reason given by the State for omitting this witness's name from the list was that

he was a co-defendant in the information. As such he was, of course, known to the petitioner as a partyallegedly having knowledge of the offense with which both he and the petitioner were charged. On the day

before trial this co-defendant was granted immunity from prosecution in return for his offer to testify for theState and his name given to petitioner's counsel as a State witness. The State tendered this witness to

petitioner's counsel for interview on the same day. For reasons of his own such counsel did not avail himselfof such opportunity. Up until that time he was a co-defendant in the information, and the State was in no

position to offer him to petitioner's counsel for questioning. Counsel complained to the trial court and thecourt offered to let counsel interview the State's witnesses, including John Robert Davis, before the beginningof the trial. A recess was taken for that purpose. During such recess petitioner's counsel interviewed all of theState's witnesses except John Robert Davis. When the court was called to order petitioner's counsel informedthe court that he had not questioned Davis, giving as his reason that he wanted to ask him certain specificquestions before a court reporter. He had not asked for a reporter nor was one denied him. The witness didnot refuse to be interviewed by petitioner's counsel. When court resumed counsel asked for a continuance of

the trial, stating that he wanted further opportunity to interview this particular witness. This request was


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denied by the Court, a jury was selected and the case proceeded to trial. At the close of the first day oftestimony and after court had recessed until the following morning, petitioner's counsel during the eveningdid interview the witness, John Robert Davis. No error was committed by the court for such denial of acontinuance for the State's failure to furnish this witness' name. As a result of his interview petitioner'scounsel learned of the name of one Dick Davis who was supposed to be the contact man between the ownerof the building which burned and who was with the owner when the fire occurred. Later in the trial JohnRobert Davis testified that this Dick Davis helped set up the arrangements and price to be paid by the ownerfor the arson. When the trial resumed on the second day, petitioner's counsel moved for a mistrial or acontinuance because of the failure of the State to furnish him the name of Dick Davis prior to trial. This

motion was denied by the court and the trial resumed, resulting in the petitioner's conviction. There is reasonto believe that the State knew that a co-defendant, John Robert Davis, was claiming that there was one DickDavis who was supposed to be the contact man between the owner, Grooms, and such co-defendant and the

petitioner, Richardson. Such co-defendant, Davis, testified that Dick Davis was such contact man and that hehad given his name as such to the State in a statement made by him prior to trial and shortly after he wasreleased on bond. The State did not attempt to refute this at the trial. The question is, was the State obligated,under these circumstances, by Rule 1.220(e), to furnish the name of this alleged person to petitioner's counselas a witness known to the prosecuting attorney to have information which may be relevant to the offensecharged or to any defense of the person charged. It is evident that the prosecuting attorney had knowledge ofthe supposed existence of one Dick Davis who supposedly had information which may be relevant to theoffense charged, and had this name been furnished to petitioner's counsel in response to his request for a listof the State's witnesses such counsel would have had the opportunity to seek out the witness and endeavor tolearn from him what information he did have which may be relevant to the offense charged. It is true that no

such witness, Dick Davis, was called by the State to testify, but his name should have, under the mandatoryrequirement of the Rule, been furnished to the petitioner. And we should not speculate as to whether therewas in fact such a witness as Dick Davis, nor whether, if so, he had information relevant to the offense

charged or to any defense of the petitioner who was charged with respect thereto. At least, petitioner'scounsel should have had an opportunity before trial to investigate him and determine if any information hehad would be of value to petitioner in his defense of the charge against him. As stated in Ramirez, supra,when it is brought to the attention of the trial court during the course of the proceedings that the State hasfailed to comply with the Rule the Court has a discretion to determine if such failure has prejudiced thedefendant on trial. But, as there noted, the trial court's discretion can be properly exercised only after thecourt has made an adequate inquiry into all of the surrounding circumstances. When this matter was broughtto the trial court's attention at the beginning of the second day of the trial the record is completely silent as toany excuse of the State for not having furnished the name of Dick Davis to petitioner's counsel. Furthermore,the court made no inquiry to determine whether there was in fact such a person as Dick Davis, and, if so,

whether he had and would furnish information to the petitioner which would aid him in his defense. It isentirely possible that if Dick Davis were found that he would refuse to help petitioner because of self-incrimination, but at least, in fairness to petitioner this was a matter that should have been inquired into by thetrial court before proceeding with the trial. If necessary, he should have declared a recess to give petitioner anopportunity to locate Dick Davis, if possible. At least, he should have offered to do so. Instead, he denied

petitioner's motion for mistrial, and ordered the trial forthwith to proceed. We think in so doing he did so tothe prejudice of the petitioner and that the conviction must be set aside for that reason. We hold that thisconviction must be reversed for another reason, and that is the attempt of the State to use a witness

implicated in the offense charged against the petitioner and who the State knew would refuse to testify

on the ground of self-incrimination. The owner of the building which was burned was one Reuben W.Grooms. One of the co-defendants in the prosecution, John Robert Davis, testified that Grooms hired him andthe petitioner, Richardson, to burn the building so that he could collect the insurance upon it. Grooms'counsel informed the prosecuting attorney before Richardson's trial that Grooms would refuse to testify on

the ground of self-incrimination. Yet, the State placed Grooms on the stand and asked him if he was theowner of the building that was burned, knowing at the time that he was an accomplice in the crime. Groomsrefused to testify, claiming his right against self-incrimination. Whereupon, petitioner's counsel promptlymoved for a mistrial, which was denied. The Court did not instruct the jury, either then or in its closingcharge, not to consider such failure of the witness to testify as evidence against the petitioner. Immediatelyupon Grooms' refusal to testify the prosecuting attorney called one Esther L. Sanchez to the stand, had thewitness Grooms brought back into the courtroom, whereupon this witness indentified Grooms as being theowner of the building which was burned. We think this combination of fact and circumstance highly

prejudicial to the petitioner. We are forced to conclude that this was a studied attempt on the part of the Stateto bring to the attention of the jury the refusal of Grooms to testify on his claim of the Fifth Amendment, withthe attendant inference to be drawn by the jury that not only was Grooms guilty, but also the petitioner, analleged co-accomplice with Grooms in the crime. It is to be noted in this connection that the State did nothave to resort to this tactic, for it had other evidence to establish Grooms' ownership of the building. We feel

that reason and justice require us to hold that petitioner suffered irreparable damage and injury in the eyes of


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the jury by Grooms being ordered to take the stand and thereby being forced to plead the Fifth Amendment.See Kaplow v. State, Fla.App., 157 So.2d 862; Farnell v. State, Fla.App., 214 So.2d 753, and cases citedtherein. We reverse and remand to the District Court of Appeal, with direction to that Court to order the trialcourt to grant a new trial to the petitioner. It is so ordered. ROBERTS, C.J., ERVIN, CARLTON, BOYD andDREW (Retired), JJ., and HALL, Circuit Judge, concur.

END QUOTE

The Prosecution is not there to score convictions but to place before the court all relevantevidence, both in favour of and against its own case, so the Court can determine upon all

evidence before the court by consideration of it all if it should hand down a judgment against orin favour of the Defendant.The Courts function is not to act as a STAR CHAMBER COURT/KANGAROO COURT to

blatantly disregard compliance with proper legal procedures to score a conviction ratio that mayassist it to gain more funding from the Government of the Day, it must hear and determinematters “according to law” and upon proper consideration hand down a judgment which may or

may not include a conviction..

Again, it was not until about 25 November 2015 that the prosecutor Buloke Shire Councilrevealed to me the kind of photographs it seeks to rely upon, as this was part of its 25 November2015 brief to an alleged 18 March 2013 hearing date, this even so the photographs are claimed

to be taken in November 2014. I submit that no judicial officer in his/her right mind couldaccept that a “full brief” for a purported 18 March 2013 Magistrates Court of Victoria hearingcould have contained photos taken some 20 months later. Yet this is the nonsense produced bythe prosecutor’s legal representatives.

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 s canned 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 Mag istrates’ 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 atthe St Arnaud Magistrates’ 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 Berriwillock. The only Court which is closer to the location of the offence is the Magistrates’ Court

ar 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’ Court is not the appropriate venue for your matter in

any 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)

AgainQUOTE

We note your purported objection to jurisdiction contained in your letter dated 17 August 2015 and

strongly suggest that you take legal advice with respect to same.

END QUOTE

It is therefore absolutely clear that ES&a lawyers were fully aware about my OBJECTION TO

JURISDICTION. The fact they desired not to respond to them also must be taken into account


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as a failure to prove jurisdiction, this as the court cannot “assume” jurisdiction but the prosecutor

had 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.

The OBJECTION TO JURISDICTION that was for the 20 August 2015 hearing at theMagistrates Court of Victoria at St Arnaud obviously on that already was well justified. Yet I amrelentlessly pursued with this kind of idiotic conduct and this from “legal practitioners”?

The current proceedings before this court have absolutely no legal validity as it purports to be ahearing De Novo which His Honour Mullaly J ordered on 30 October 2015 with a total disregardto the OBJECTIONS TO JURISDICTION that have existed all along.If this court were to proceed with a hearing De Novo it would exercise no judicial powers but the

judicial officer would be acting in private capacity and any orders would be a nullity.As set out below, when an OBJECTION TO JURISDICTION is made then the other partymust provide sufficient evidence to overcome the objection and this includes each and everyissue the objector may raise complimentary to the OBJECTION TO JURISDICTION.I ended up in 1988 that the Supreme Court of Victoria dismissed my application suing the Stateof Victoria for want of jurisdiction, where counsel for the State of Victoria merely uttered toobject to the jurisdiction of the court and His Honour, correctly pointed out, that unless I could

prove each and every relevant legal issue, including if relevant legislation had been Gazetted, etc,I would face, as eventuated, the application to be dismissed for want of jurisdiction.As set out below Buloke Shire Council being the prosecutor under delegated powers by the Stateof Victoria then likewise now had to prove jurisdiction. So far it failed to do so on 20 August2015 and on 17 September 2015 before the magistrates court of Victoria at St Arnaud and also

before His Honour Mullaly J on 30 October 20125. In fact counsel for Buloke Shire Council hadno legal standing to appear as no Notice to appeal was filed or served.At no time did I ever criticise the Supreme Court of Victoria having dismissed my case for wantof jurisdiction, this also because His Honour did take the time to explain that he was bound bythe rule of law. Yet, I find that when I object to the jurisdiction of the court then I end up inendless years of battles because somehow judicial officers are bias towards the government and

seek to circumvent dealing with an OBJECTION TO JURISDICTION, this even so legallythey have no judicial powers they can invoke if an OBJECTION TO JURISDICTION has not

been disposed of.

Let me explain that I as a CONSTITUTIONALIST on 19 July 2006 I comprehensivelydefeated the Commonwealth in both appeals in the County Court of Victoria on FAILING TOVOTE on constitutional issues, including that the County Court of Victoria is not a constitutionalvalidly operating court because of its ABN registration to be “Business Unit 19” with the

Department of Justice, instead of what is required by the legal principles embedded in theCommonwealth of Australi a Constitution Act 1900 (UK) to be “independent” as part of theconstitution (Not part of the government!) and by the 2 January 1901 published Letters Patent in

the Victorian Gazette to be “impartial administration of justice”! This in addition to numerousother constitutional issues including that “compulsory” voting is a violation of the “political

liberty” enshrined in the constitution. While at the time the then Victorian Attorney -General Mrrob Hulls stated to abide by the courts decision it now is that I view Mr Martin Pakula Attorney-General is violating this regarding allowing Buloke Shire Council to litigate against me (on

behalf of the State of Victoria) in clear violation to the rights I obtained by the successful appealsof 19 July 2006. In my view this constitutes CONTEMPT OF COURT!

County Criminal Court: APPELLATE PROCEDURE — Appealability Jury Trial/Improper Relief — Under the law of the case doctrine, the same legal question cannot be re-determined on a subsequent appealin the same case when the facts remain the same. Conviction and sentence affirmed. Richard Jason

Kirkendall v. State of Florida, No. CRC10-008274-CFAES (Fla. 6th Cir. App. Ct. November 28, 2011).

http://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2011/KirkendallRichard512010CF008274A000ES.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2011/KirkendallRichard512010CF008274A000ES.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2011/KirkendallRichard512010CF008274A000ES.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2011/KirkendallRichard512010CF008274A000ES.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2011/KirkendallRichard512010CF008274A000ES.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2011/KirkendallRichard512010CF008274A000ES.htm


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The following authority (http://supreme.justia.com/cases/federal/us/209/123/case.html) Ex Parte Young - 209U.S. 123 (1908) may underline that State officials can be held in CONTEMPT OF COURT even

being an Attorney General. As even judges can be held in CONTEMPT OF COURT, then Iview nothing can save a Premier, former premier, Sheriff and others who are participating orremain silent about the misuse and/or abuse of the courts processes.It is a matter of criminal law that when a person observes someone to commit a crime and fails toreport this or take such action as may be deemed appropriate in the circumstances.

http://supreme.justia.com/cases/federal/us/209/123/case.htmlEx Parte Young - 209 U.S. 123 (1908)

QUOTE

A temporary restraining order was made by the Circuit Court, which only restrained the railway companyfrom publishing the rates as provided for in the act of April 18, 1907, and from reducing its tariffs to thefigures set forth in that act, the court refusing for the present to interfere by injunction with regard to theorders of the commission and the act of April 4, 1907, as the railroads had already put them in operation; butit restrained Edward T. Young, Attorney General, from taking any steps against the railroads to enforce theremedies or penalties specified in the act of April 18, 1907.Copies of the bill and the restraining order were served, among others, upon the defendant Mr. Edward T.Young, Attorney General, who appeared specially and only for the purpose of moving to dismiss the bill as tohim, on the ground that the court had no jurisdiction over him as Attorney General; and he averred that theState of Minnesota had not consented, and did not consent, to the commencement of this suit against him as

Attorney General of the State, which suit was, in truth and effect, a suit against the said State of Minnesotacontrary to the Eleventh Amendment of the Constitution of the United States.The Attorney General also filed a demurrer to the bill on the same ground stated in the motion to dismiss. Themotion was denied and the demurrer overruled.Thereupon, on the 23d of September, 1907, the court, after a hearing of all parties and taking proofs in regardto the issues involved, ordered a temporary injunction to issue against the railway company restraining it,

pending the final hearing of the cause, from putting into effect the tariffs, rates, or charges set forth in the actapproved April 18, 1907. The court also enjoined the defendant Young, as Attorney General of the State ofMinnesota, pending the final hearing of the cause, from taking or instituting any action or proceeding toenforce the penalties and remedies specified in the act above mentioned, or to compel obedience to that act, orcompliance therewith, or any part thereof.Page 209 U. S. 133

END QUOTE

Likewise, the Attorney-General for the State of Victoria allowing Buloke Shire Council tolitigate on its behalf as to purportedly enforce legal provisions of the Country Fi re Authority Act1958 by this clearly acts by this in violation of my rights obtained on 19 July 2o006.If the Attorney-General didn’t like the 19 July 2006 court ruling based upon my submission ofconstitutional issues (and a S78B NOTICE OF CONSTITUTIONAL MATTERS was at thetime served upon all Attorney-General’s then the Attorney-General could have placed hisobjections at the time. Now about 10 years later it is beyond the courts power to allow for thiskind of litigation in clear violation of my successful appeals.As the High Court of Australia in HCA 27 of 1999 Wakim made clear the same parties cannotre-litigate the same constitutional issues between them.

As such on that basis also I maintain my OBJECTION TO JURISDICTION.

Some legal principles I hold very relevant to mention some;https://law.resource.org/pub/us/case/reporter/F.Cas/0003.f.cas/0003.f.cas.0221.pdfBENNETT V. BOGGS. QUOTE

We cannot declare legislative act void because it conflicts with our opinions of policy, expediency or

justice. We are not the guardians of the rights of the people of a state unless they are secured by some

constitutional provision which comes within our judicial cognizance. The remedy for unwise or

oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the

representatives of the people. If this fails, the people in their sovereign capacity can correct the evil; but

courts cannot assume their rights.END QUOTE

http://supreme.justia.com/cases/federal/us/209/123/case.htmlhttp://supreme.justia.com/cases/federal/us/209/123/case.htmlhttps://law.resource.org/pub/us/case/reporter/F.Cas/0003.f.cas/0003.f.cas.0221.pdfhttps://law.resource.org/pub/us/case/reporter/F.Cas/0003.f.cas/0003.f.cas.0221.pdfhttp://supreme.justia.com/cases/federal/us/209/123/case.html


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https://www.gov.uk/government/speeches/the-rule-of-law-and-the-future-of-the-sectorSpeech The Rule of Law and the Future of the SectorFrom: Attorney General's Office and The Rt Hon Jeremy Wright QC MP QUOTE

I do not want this speech to be a historical overview of the rule of law but the English philosopher JohnLocke made the point in 1690 that ‘Wherever law ends, tyranny begins’. The classic modern definition of the

Rule of Law – and by modern I mean 1885 - comes from the jurist and constitutional theorist AV Dicey. Iwon’t read the whole of what he said but two parts of it are of particular importance to the success of the City

of London and its commercial and legal sectors. Firs tly, Dicey said that the rule of law meant that “no man is

punishable or can be lawfully made to suffer in body or goods except for a distinct breach of lawestablished in the ordinary legal manner before the ordinary Courts of the land.” He also said that whenwe speak of the “rule of law” we mean not only that with us no man is above the law, but that here everyman, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the

jurisdiction of the ordinary tribunals.END QUOTE

Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)

QUOTE As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose his

clients...He must accept the brief and do all he honourably can on behalf of his client. I say 'All he

honourably can' because his duty is not only to his client. He has a duty to the court which is

paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he wants: or

his tool to do what he directs. He is none of those things. He owes his allegiance to a higher cause. It isthe cause of truth and Justice. He must not consciously misstate the facts. He must not knowingly

conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support

it. He must produce all relevant authorities, even those that are against him. He must see that his

client discloses, if ordered, all relevant documents, even those that are fatal to his case. He mustdisregard the specific instructions of his client, if they conflict with his duty to the court.

END QUOTE

The word “transcript” must not be wrongly interpreted to relate only to the written version ofwhat was recorded by a court reporter. . these days transcripts are created from what is the courtaudio transcript recording. As such “transcript” includes the Audio recording. As after all where

there is no court reporter sitting in the court room and any transcript is created from the audio

court transcript recording then the audio recording it self is deemed to be the transcript.As a matter of fact over the decades I had to alert Auscript that it had wrongly transcribed audiorecordings as much as 8 errors on a page. For example where a party had stated “tol d Mr Allenthat Scott was the husband’s” (in a paternity case) the court reported had transcribed this as “told

Mr Allan that Scottish bastard”. While upon review Auscript corrected the transcript,

nevertheless it does underline that the audio recording is more reliable then the writtentranscribing of it.The audio transcript underlines there never was any witnesses to have given evidence from thewitness box, and that includes the lawyer.

County Small Claims Court: APPELLATE PROCEDURE – record - To show error, the appellant must provide

the appellate court with an adequate record of the trial proceedings so that the court can properly consider allrelevant factual issues and determine if the trial court’s judgment was supported by the evidence and whether theissues were properly preserved for appeal - Without a transcript of the hearing in this case and no error of lawappearing on the face of the final judgment, appellant could not overcome presumption of correctness of trial court’s

decision and demonstrate reversible error – Final judgment affirmed. Henderson v. Kotadia, No. 02-6529-CI-88A(Fla. 6th Cir. App. Ct. Jan. 8, 2003).

County Criminal Court: APPELLATE PROCEDURE – Record – Trial court’s judgment clothed with a presumption of correctness, and can’t be disturbed in absence of record demonstrating error. Judgment affirmed.

Smith v. State, No. CRC 05-15 APANO, (Fla. 6th Cir.App.Ct. June 28, 2006).

County Criminal Court: APPELLATE PROCEDURE – Record – Judgment and sentence are presumed correctunless the appellate court is provided with a record sufficient to evaluate the appellant’s claim of error. No record

https://www.gov.uk/government/speeches/the-rule-of-law-and-the-future-of-the-sectorhttps://www.gov.uk/government/organisations/attorney-generals-officehttps://www.gov.uk/government/people/jeremy-wrighthttps://www.gov.uk/government/people/jeremy-wrighthttps://www.gov.uk/government/people/jeremy-wrighthttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2004/02-6529-CI-88A%20Henderson.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2004/02-6529-CI-88A%20Henderson.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2004/02-6529-CI-88A%20Henderson.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2006/05-15%20APANO%20Richard%20Smith.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2006/05-15%20APANO%20Richard%20Smith.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2006/05-15%20APANO%20Richard%20Smith.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2006/05-15%20APANO%20Richard%20Smith.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2004/02-6529-CI-88A%20Henderson.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2004/02-6529-CI-88A%20Henderson.htmhttp://www.jud6.org/LegalCommunity/LegalPractice/opinions/appellatedivisionopinions/2004/02-6529-CI-88A%20Henderson.htmhttps://www.gov.uk/government/people/jeremy-wrighthttps://www.gov.uk/government/organisations/attorney-generals-officehttps://www.gov.uk/government/speeches/the-rule-of-law-and-the-future-of-the-sector


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presented, thus judgment and sentence affirmed. Shanklin v. State, No. CRC 05-64 APANO, (Fla. 6th Cir.App.Ct.May 17, 2006).

County Civil Court: APPELLATE PROCEDUR E – Record – Since an appellate court cannot consider factsoutside the record, the judgment must be affirmed. Cheryl Wise v. Citibank, N.A., No. 12-AP-000011-WS (Fla. 6thCir. App. Ct. March 19, 2013).

County Civil Court: APPELLATE PROCEDURE – Record – To show error, Appellant must provide theappellate court with an adequate record of the trial proceedings; without a transcript of the hearing in this case and

no fundamental error of law appearing on the face of the final judgment, Appellant could not overcome presumptionof correctness of trial court’s decision and demonstrate reversible error. Judgment affirmed. Joseph Rainier v. State,

No. 11-CF-001413-WS (Fla. 6th Cir. App. Ct. July 20, 2012).

County Civil Court: APPELLATE PROCEDURE – Record – To show error, the appellant must provide theappellate court with an adequate record of the trial proceedings; without a transcript of the hearing in this case andno fundamental error of law appearing on the face of the final judgment, appellant could not overcome presumptionof correctness of trial court’s decision and demonstrate reversible error. Judgment affirmed. Cordas v. Periatomby,

No. 08-000049AP-88A (Fla. 6th Cir. App. Ct. February 16, 2010).

County Civil Court: APPELLATE PROCEDURE – Record – To show error, the appellant must provide the appellatecourt with an adequate record of the trial proceedings; Without a transcript of the hearing in this case and no error of law

appearing on the face of the final judgment, appellant could not overcome presumption of correctness of trial court’s decision anddemonstrate reversible error no transcript-Judgment affirmed. Reyes v. Linder , No. 51-2008-AP-10 (Fla. 6th Cir App. Ct. April16, 2009).

County Traffic Court: APPELLATE PROCEDURE – Record – Appellant has failed to demonstrate in the recordany error in the trial court's decision. Cusma v. State, CRC0400140CFAES (Fla. 6th Cir. App.Ct. August 11, 2005).

County Criminal Court: APPELLATE PROCEDURE – Record – Since electronic recording system was not properly engaged, there is no transcript of the proceedings available. Therefore, the defendant is entitled to a newtrial because the matters raised in the appeal are unable to be resolved without reference to the transcript of the

proceedings. Judgment and sentence reversed. Tadlock v. State, No. CRC 04-7 APANO, (Fla. 6th Cir.App.Ct. July7, 2005).

County Civil Court: APPELLATE PROCEDURE — Record: Appellate court had to accept propriety of trialcourt’s denial of motion to vacate when no transcript or approved statement of evidence was filed. Lazaro v. Robert

A. Dempster Reporting Co., No. 04-0013AP-88A (Fla. 6th Cir. App. Ct. Jan. 24, 2005).

County Small Claims Court: APPELLATE PROCEDURE – record - Without a transcript of the hearing in thiscase and no error of law appearing on the face of the final judgment, appellant could not overcome presumption ofcorrectness of trial court’s decision and demonstrate reversible error – Final judgment affirmed. Strickland v. Doyne,

No. 02-4722-CI-88A (Fla. 6th Cir. App. Ct. Jan 8, 2003).

The Appellant has not specified any errors of the lower court nor presented any issues for review and the recordshows that no error was committed in the proceedings below. As the Appellant has not shown any basis for reversalof the lower court, the lower court’s Final Judgment is affirmed. Heideman v. Colton and Associates, No. 99-8466-

CI-88A (Fla. 6th

Cir. Ct. August 24, 2000).

I in 1985 created the concept of the ADDRESS TO THE COURT (written submissions) whichsince has been used in all level of courts, including the High court of Australia.I was sick and tired how judicial officer prevent a party to have a fair and proper opportunity tomake submissions to the court and hence designed this concept.When a judge refused to consider my ADDRESS TO THE COURT and issued orders adverseto me I successfully appealed this and the full Court did set aside the orders making clear that thetrail judge had to consider the written submissions in the ADDRESS TO THE COURT.

As the orders by the Magistrates Court of Victoria at St Arnaud on 17 September 2015 were

without evidence and without consideration, and the comments of His Honour Mullaly J on 30

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October 2015 may be considered in light of the following questions also, as bias, legallyinappropriate, etc.http://www.ndcourts.gov/Court/Briefs/20120446.atb.htm State v. Ratteray District Court Case No. 02-2011-CR-00059QUOTE

A. Standard Of Review.

B. There was Insufficient Evidence to Support Convictions on all the Charges.

1. There was Insufficient Evidence to Establish the Offenses of Gross Sexual Imposition Under the Law.

2. There was Insufficient Evidence to Establish the Offense of Creation of Sexually Expressive Images.C. The Sentence in this Matter was Excessive or Based on Impermissible Factors .

END QUOTE

http://www.ndcourts.gov/Court/Briefs/20120446.atb.htm State v. Ratteray District Court Case No. 02-2011-CR-00059QUOTE

[24] In this case the Court held an evidentiary hearing after a pre-sentence investigation. The Court in thiscase noted that Chris did not have a prior criminal record. (App. 100, ln. 14). However, the Court continued"That doesn't mean you didn't get caught at anything or that you didn't do something that you didn't getcaught at, but suffice it to say you didn't basically have any prior record." (App. 100, lns. 17-20). Thesecomments by the court show a predilection by the court not to believe that Chris did not have a

previous criminal record. Such a consideration is improper under the law.

END QUOTE


[26] Finally, Mr. Ratteray contends that the court took his race into consideration. This issue has beenaddressed before by the United States Supreme Court. See McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct.1756, 95 L.Ed.2d 262 (1987). The McCleskey court held that a study in and of itself was insufficient tosupport an inference that the sentence was discriminatory. Id., 481 U.S. at 297, 107 S.Ct. at 1770, 95 L.Ed.2dat 281-282. The North Dakota Supreme Court appears to accept this analysis in State v. Halton (535 N.W.2d734). Although McCleskey dealt with death penalty cases, North Dakota appears to have recognized andaffirmed the discrimination analysis in Halton. The fundamental notion in McCleskey is that the accusedmust show "that the decisionmakers in his case acted with discriminatory purpose." McCleskey, 292,

emphasis in original.END QUOTE


[30] In this case, Mr. Ratteray is African American. That fact is not in dispute. Mr. Ratteray received asentence of eight (8) years, with none suspended. Mr. Ratteray had no previous criminal history, and had filednumerous letters of support from his family. (App. 98, lns. 6-9). Mr. Ratteray had been enrolled in college atthe time of incident. Relying on statistical notations and the findings of the North Dakota Commission toStudy Racial and Ethnic Bias, and a further actual case where Mr. Ratteray received a much harsher sentencethan a similarly situated Defendant is sufficient to call into question to prove the discriminatory intent of thedecision maker in this case. Mr. Ratteray further contends that the comments regarding that Mr.

Ratteray "didn't get caught at anything or that you didn't do something that you didn't get caught at"reflects a bias toward believing that Mr. Ratteray did indeed not have a prior criminal record. [31] Because Christopher Ratteray contends that other factors which were not appropriate pursuant to the lawand constitutional requirements, his sentence should be reconsidered under the law.

END QUOTE

QUOTE Padfield v Minister of Agriculture & Fisheries and Food (1968) AC 997 (1968) 1ALL ER 694 House of Lords - Lord Upjohn and Lord Hodson Upjohn: - (Irrelevantconsideration)

Here let it be said at once, he and his advisers have obviously given a bona fide and painstaking consideration to the complaints addressed to him; the question is whether theconsideration was sufficient in law.

END QUOTE .

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QUOTE Bringinshaw v Bringinshaw (1938) 60 CLR 336 at 361,362 Not inexact proof, indefinite testimony or indirect inference (By prosecution)

END QUOTE

As to legal principles of authorities:QUOTE Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)

That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR 357) was

very briefly, and I regret to say, insufficiently argued and c

20160202-schorel-hlavka o.w.b. to county court of victoria-re buloke shire council...

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