060719gh Address Part 2 v7

Part 2 Page 1

Page 1

ADDRESS TO THE COURT

including

SUBMISSIONS

By the Defendant, Mr G. H. Schorel-Hlavka.For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

ADDRESS TO THE COURT, Part 2

County Court of Victoria, Case numbers T01567737 & Q10897630

STANDARDS OF BURDEN OF PROOF

;

In criminal matters, at least as I understand it, theProsecutor has the burden of proof of criminal standard toprove not only his case but to disprove each and everyelement of the excuses proffered by the accused, this, whilethe defendant has the civil standard of proof.

Therefore, if the Commonwealth Director of Public Prosecution is unable to prove beyondreasonable doubt any of the excuses or reasons given by the Defendant then the Court cannotconvict, this as the criminal standards of proof requires that each and every element of theDefendants case must be disproved. It is not good enough for the prosecutor to disprove 999 of a1000 arguments put forwards by the Defendant, as a single argument failing to be disproved isfatal to the prosecutions case to obtain a conviction.

Denial of exhibit ADDRESS TO THE COURT, even so already filed and served!

The Defendant has in the past experienced that a judge ignored the content of the

ADDRESS TOTHE COURT

only for the Full Court overturning the orders as the Full Court made clear that thetrial judge erred in law not to consider the relevant material that was before the Court.

Can a Magistrate by implication overrule a decision of another Magistrate, without beingaware of the previous Magistrate decision?

In my view a magistrate has no legal powers to overrule another magistrates decision and is boundto consider any orders on foot. Hence the magistrate on 16 and 17 November 2005 was bound torespect the outstanding orders directions of 4 December 2002 and 4-8-2005.

Can writs be declared invalid?

As elsewhere already set out in this

ADDRESS TO THE COURT

, writs can be declared invalidif they fail to be as required by legislative provisions as well as if they are issued where there is novacancy existing. Such as if a writ is issued prior to the publication of the Proclamation for a“general election”.

Can elections be declared invalid?

Elections can be declared invalid, as set out elsewhere in this

ADDRESS TO THE COURT

, asan election held under a defective writ is no election at all.

Is Section 353 of the

Commonwealth Electoral Act 1918

unconstitutional?

During the proceedings before Marshall J of the Federal Court of Australia on 7 November 2001

Mr Peter Hanks QC

of the Australian Electoral Commissioner submitted that Section 353 usingthe term “

and not otherwise

” therefore did not allow jurisdiction to the Federal Court of Australia

Part 2 Page 2

Page 2

ADDRESS TO THE COURT

including

SUBMISSIONS

By the Defendant, Mr G. H. Schorel-Hlavka.For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

to hear and determine matters governing an election. Marshall J wrongly accepted thisproposition.The

Constitution

and so any provisions stated in the

Constitution

, including Section 32 aresubject to the legal determination of the High Court of Australia, which has the original jurisdiction, and cannot be purportedly denied by the Parliament to be delegated to some Court of Disputed Returns.What was originally was that if there was an issue about a member of the House (of a Parliament)being challenged to his validity to be in the House then this was determined by the other Membersof that House if the person was or was not entitled to be a Member of that House.This is a complete different issue as to what the Defendant was pursuing before the Federal Courtof Australia, as the Defendant on 2 November 2001 and subsequently on 7 November 2001 wasnot challenging any sitting member but was in fact challenging the legal validity of the writs thatwere used for the intended election to be held then on 10 November 2001.The challenge against the validity of any writ or proclamation is a constitutional issue andtherefore to be heard and determined in the ordinary manner. By a Court of law, which the HighCourt of Australia sitting as a Court of Disputed Returns cannot be classified to be as such,regardless if this is still involving the High Court of Australia and so its judges.The defendant instituted his proceedings prior to the purported 10 November 2001 election beingheld, and therefore there was no sitting member under challenge that possibly could have invokedthe right of a House to declare if a Member should sit in the House or not. Hence, the Court of disputed Returns therefore neither could exercise for the House this issue. Therefore if Section353 is to purport that “

and not otherwise

” is to be understood as Marshall J did that a challenge toan election at all times must be before the Court of Disputed Returns, then this is unconstitutionalas it denied the High Court of Australia sitting as High Court of Australia its original jurisdiction.Further, it would make a mockery of the

Constitution

, as Members of the Parliament could thenby this overrule any constitutional provision and avoid this being scrutinised by the High Court of Australia or any other Court exercising federal jurisdiction as a Court of law.The meaning and validity of;(1) The validity of any election or return may be disputed by petition addressed to theCourt of Disputed Returns and not otherwise.And the meaning andvalidity of;The High Court shall be the Court of Disputed Returns, and shall have jurisdiction eitherto try the petition or to refer it for trial to the Federal Court of Australia (the

Federal Court

).are in question. This, as the wording “validity of election” is beyond the scope of the Parliamentto legislate for. The Parliament could legislate as to the manner in which a member of parliamentmay have been elected, but could not provide for legal issues, such as a prospective candidatewrongly denied to be nominated by the Australian Electoral Commission to have to follow thecourse of a Court of Disputed Returns, as this is a “legal issue” of wrongly excluding aprospective candidate, and the fact that incidentally a sitting Member may then have to vacatehis/her seat obtained during that election is not the real “legal” issue. It is a mere consequence toif an election was not held in a proper legal format then the election was held invalid and theparliament (either house) never had any constitutional power to override this, and as such neithercan the Court of Disputed Returns, acting for either House then exercise such power.

353 Method of disputing elections

(1) The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise.(2) The choice of a person to hold the place of a Senator by the Houses of Parliament of a State orthe appointment of a person to hold the place of a Senator by the Governor of a State undersection 15 of the Constitution shall be deemed to be an election within the meaning of this

Part 2 Page 3

Page 3

ADDRESS TO THE COURT

including

SUBMISSIONS

By the Defendant, Mr G. H. Schorel-Hlavka.For 19-7-2006 County Court of Victoria proceedings Case numbers T01567737 & Q10897630

section, and the provisions of this Division shall, so far as applicable, have effect as if thatchoice or appointment were an election within the meaning of this Division.(3) The choice of a person to hold the place of a Senator for the Australian Capital Territory bythe Legislative Assembly for the Australian Capital Territory or the appointment of a personto hold the place of such a Senator by the Chief Minister for the Australian Capital Territoryunder subsection 44(1) shall be deemed to be an election within the meaning of this section,and the provisions of this Division shall, so far as applicable, have effect as if that choice orappointment were an election within the meaning of this Division.(4) The choice of a person to hold the place of a Senator for the Northern Territory by theLegislative Assembly of the Northern Territory or the appointment of a person to hold theplace of a Senator by the Administrator of the Northern Territory under subsection 44(2) shallbe deemed to be an election within the meaning of this section, and the provisions of thisDivision shall, so far as applicable, have effect as if that choice or appointment were anelection within the meaning of this Division.

354 The Court of Disputed Returns

(1) The High Court shall be the Court of Disputed Returns, and shall have jurisdiction either totry the petition or to refer it for trial to the Federal Court of Australia (the

Federal Court

).(2) When a petition has been so referred for trial, the Federal Court shall have jurisdiction to trythe petition, and shall in respect of the petition be and have all the powers and functions of theCourt of Disputed Returns.(3) The High Court may refer to the Federal Court part of a petition in respect of an election orreturn, being a part that consists of a question or questions of fact.(4) Subject to any directions by the High Court, if the High Court refers part of a petition to theFederal Court under subsection (3):(a) the Federal Court has jurisdiction to deal with the part of the petition that has beenreferred; and(b) the Federal Court has, in respect of the petition, the powers and functions of the Court of Disputed Returns, other than the powers referred to in paragraphs 360(1)(v), (vi), (vii)and (viii) and in section 379; and(c) subject to any directions by the High Court, further proceedings in relation to the part of the petition are as directed by the Federal Court.(5) The High Court may have regard to the findings of the Federal Court in dealing with thepetition and may in its discretion receive further evidence on questions of fact.(6) The jurisdiction conferred by this section may be exercised by a single Justice or Judge.

383 Injunctions

(1) Where a person has engaged, is engaging or is proposing to engage in any conduct thatconstituted, constitutes or would constitute a contravention of, or an offence against, this Actor any other law of the Commonwealth in its application to elections, the Federal Court of Australia (the

Federal Court

) may, on the application of:(a) in a case where the conduct relates to an election—a candidate in the election; or(b) in any case—the Electoral Commission;grant an injunction restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Federal Court it is desirable to do so, requiring that person to do any actor thing.(2) Where: