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Stealth back in court
Below is an OCR transcript of the Magistrate's interesting record of his reasons for sentence which was copied to the defendants. Reasons for decision on sentence: Police v Brian Michael Dark Because the background events leading to the incident which has given rise to the charges against the abovementioned defendants for what might conveniently be called "obstruction" have generated considerable community concern and media attention, I have taken the liberty of recording my reasons for sentence and making them available to the prosecutor and the defendants. It is hoped that this might minimise misunderstanding and misinterpretation. Each of the defendants stands charged pursuant to s6 Summary Offences Act 1988 that on 27 April 2004 at Leura in the State of NSW he or she did, without reasonable excuse, wilfully prevent the free passage of a vehicle in a public place, to wit, Mt Hay Road, Mt Hay. There are minor variations in the times on that date which are alleged to relate to the specific individuals named but nothing turns on this. Nor is there any significant variation in the conduct alleged, namely that in each case the defendant placed himself or herself on the roadway in such a manner as to prevent the free passage of a vehicle travelling north on Mt Hay Road in the course of an "environmental protest". Each defendant has pleaded guilty and submitted that the court should exercise its discretion to dismiss the charge having regard to the context of the offences and the subjective circumstances of each defendant. I am obliged to, and will of course, deal with each individual case on its merits, having regard to the objective and subjective circumstances applicable. However, there are some generic features which appear to be applicable in each case so I will deal with those first in a global fashion. It is common ground that each of the defendants attended the protest site in Mt Hay Road for the purpose of offering what might be described as passive resistance to vehicles seeking access to Mt Hay and its precincts. The vehicles which the defendants sought to block were associated with a film crew which proposed to film certain sequences in connection with a forthcoming US production called "Stealth" although their action no doubt posed an obstacle to any other vehicle seeking to use Mt Hay Road in a lawful fashion. It is also the case that, at the material times, the film crew believed it was going about its lawful business, the production company having obtained, as it thought, all necessary authorisations from relevant government agencies, and in particular from the NSW National Parks and Wildlife Service. The film crew had agreed to abide by certain detailed conditions in relation to the proposed filming process at the designated site. The conditions had been sought and imposed because the site in question was part of the protected Blue Mountains World Heritage Area. It is also accepted that, for their part, each of the defendants genuinely believed that his or her action was necessary to prevent what each thought would amount to irreparable damage to the fragile ecosystem which prevailed at the proposed site. This belief was based on the assumption that the infrastructure necessary for the proposed filming would inevitably cause significant damage and that such damage could not be cured. Each of the defendants believed that the conditions imposed by the National Parks and Wildlife Service were inadequate to the task of protecting the environment at the site. Accordingly, it was the belief of each of the defendants that the danger posed to the ecosystem at the site was imminent and that no alternative means of halting the process was practicable or available to them. In the event the protesters temporarily achieved their objective. Shortly after the arrests, Mr Justice David Lloyd granted an injunction (sought by the Blue Mountains Conservation Society Incorporated against the National Parks and Wildlife Service, the Minister for the Environment and AFG Talons Productions Ltd -the film production company). With the benefit of hindsight we now know that on 29 April 2004 His Honour Mr Justice David Lloyd made orders restraining the use of the Grose Wilderness in the Blue Mountains National Park for the purpose of a commercial film production and associated activities and set aside the approvals and consents originally made for such activities. In that sense, I suppose, the defendants are entitled to feel that their beliefs were vindicated. However, it is important to point out that this is not an inquiry into the rights and wrongs of filming in wilderness areas or the conditions under which it should take place. This is a contentious area involving very important political and policy considerations for the community which deserve careful scrutiny and consideration by all concerned. But it is not for this court to express a view on the merits of the contending opinions which have been voiced with some vigour in the media over recent weeks. The focus here must be on the conduct of the defendants on 27 April 2004. It is common ground that there was no violence by any defendant nor any property damage occasioned by any of them. It is also important to record that the police appear to have discharged their duty firmly, fairly and courteously and that there was no suggestion of impropriety on their part. These are all important considerations as far as the objective circumstances of the offence charged are concerned. Looming large in the subjective features of each of the defendants was the issue of motive. There was no personal benefit to be gained by any of them. Indeed there was a potential detriment. Their motives could be characterised as altruistic. Leaving aside whether anyone agrees with the method chosen by the defendants to secure their objective, there can be no gainsaying the genuineness of their motive and their attendant beliefs as to what was likely to occur if this action was not taken. Far from being "ratbags" or "fringe lunatics" or the subject of some similar epithet which is not infrequently applied to persons who choose to protest in this manner, the defendants were responsible citizens actuated not by malice or mischief but by what they perceived as a higher good. Indeed, there is a good deal to be said for different voices being heard on matters of public concern. However, as a matter of law it is clear from the authorities that self-help in such circumstances (however well-motivated) is not usually a bar to liability if the conduct otherwise amounts to an offence. Citizens are encouraged to pursue lawful means to achieve their objectives. Chief Justice Street put it succinctly in the following terms: The circumstances in which an individual can be permitted to take the law into his own hands are limited. There is, moreover, a developing tendency to limit yet further what might be described as self-help by physical assertion of legal rights. ...It is a clear policy of the law that legal rights should ordinarily be enforced and protected by due process and not by taking a physical initiative. To accept it as reasonable that every individual can intervene physically to hinder or prevent a breach or to procure observance of civil law would involve dangerous overtones capable of leading to oppression and coercion, if not to actual disorder. The law enforcement agencies of the community, both civil and criminal, have the responsibility on its behalf of seeing to the observance of the law. (R v Bacon (1977) 2 NSWLR 507) Chief Justice Street was there addressing the issue of whether, in the circumstances of that case, a defence of necessity would exculpate the defendant and decided that it did not. Yet nothing in that decision, or other relevant authorities, as I understand them, would preclude a court from considering the actions, motives or beliefs of persons involved in an environmental protest, on the question of penalty as distinct from liability. The distinction is an important one. It should be borne in mind when considering the so-called right to protest about which there seems to be considerable confusion in the community. Because of this I propose to add a few general observations about the so-called right to protest to place the current incident in an appropriate context. The "right" to protest: The ability to protest publicly is often claimed to be an important feature of a democratic state. For example, Frank Brennan has written: If constitutional democracies are to be more than elected dictatorships, they must maintain legal and protected means for the citizen's expression of political discontent. It is facile to claim that the vote, access to a local member, and the availability of a free press are sufficient means. There are some political issues that prompt feelings of moral outrage in the citizens. The legal and protected means must include means for the communication of such outrage. The most usual means for such communication are the public procession and assembly. A person's physical presence at a place or event is the most powerful means of expression for one believing in or committed to a particular cause, person or collection of persons. In society a public gathering of persons is the most powerful means of expression of solidarity to the group and witness to those outside the group. ( Frank Brennan,"The Right to Protest and the Law: An Australian Perspective", (p11) in Electoral and Administrative Review Commission, The Role of Peaceful Protest in the Democratic Process, Brisbane, 1990) According to the United States Supreme Court, (in the decision of United States v Cruikshank (1986) 92 US 552): (T)he right of people peacefully to assemble for lawful purposes ... is, and always has been, one of the attributes of citizenship under a free government ... It is found wherever civilisation exists. In the British context, Lord Scarman, in the report of his enquiry into The Red Lion Square Disorders in 1974, remarked: Amongst our fundamental human rights there are without doubt, the rights of peaceful assembly and public protest and the right to public order and tranquillity ... a balance has to be struck, a compromise found that will accommodate the exercise of the right to protest with in a framework of public order which enables ordinary citizens who are not protesting to go about their business or pleasure without obstruction or inconvenience. (Rt Hon Lord Scarman, The Red Lion Square Disorders of 15 June 1974, Cmnd 5919, House of Commons, London, HMSO, 1975, para 5) While these statements contain similar assertions about the place of public protest in a democracy, rhetoric concerning the desirability of rights must be carefully distinguished from the legal and constitutional machinery (if any) which seeks to guarantee such rights. The legal situation in Australia is often misunderstood. Unlike the situation in the United States, there are no constitutional guarantees to a right to protest in NSW or elsewhere in this country. (I leave aside the limited implied right to freedom of political expression upon which the High Court has ruled in the last decade or so as it does not appear to have any application to the present situation). In the absence of guaranteed rights to freedom of expression, movement, association and the like, the sphere of liberty to act in these respects is the residual realm which remains once the complex matrix of legal prohibitions and restrictions is taken into account. There are also laws which seek to regulate public assemblies. Without going into detail (because there is no suggestion that these laws are relevant to the present context) it is possible to seek authorisation for such an assembly and, if the persons so authorised participate in the assembly, they are in certain circumstances immune from liability for what might otherwise be an offence. As mentioned, it is not in dispute that there was no attempt to seek such authorisation for the Mt Hay protest. In the present context there is a prohibition imposed by law (in the absence of reasonable excuse) on the wilful prevention of free passage of persons and vehicles in a public place. Once it is conceded that the protesters deliberately prevented such free passage without reasonable excuse (and everyone agrees that Mt Hay road is a public place), there is no so-called "right" to protest. Civil disobedience: The proper characterisation of this protest is an act of civil disobedience. This involves at least technical illegality on the part of the protesters. Indeed there is an acceptance that the commission of the offence (which is acknowledged) is morally (as distinct from legally) justifiable or excusable because of the higher objective (as perceived by the protesters) sought to be achieved by the protest action. Specifically, in this case, of course the objective was to prevent the film crew associated with the film "Stealth" from gaining access to the designated site at Mt Hay in the Grose Valley. This in turn was designed, as far as the protesters were concerned, to secure the protection of the fragile environment at the designated film site which they believed would be irretrievably damaged if filming proceeded as planned. The corollary of acts of civil disobedience (of which there is a long and distinguished history) is that persons so engaged not only acknowledge liability but are willing to accept the punishment which may be imposed by the legal system for such actions. Penalty: It is to a consideration of the issue of penalty that I now turn. It has been submitted on behalf of the defendants that, having regard to the objective features of the offence and the subjective features of the offenders, that this is a case in which the court should exercise its discretion to dismiss the matter, without recording a conviction, notwithstanding a finding of guilt. Sergeant Watson, the police prosecutor, having been given an opportunity to be heard, does not oppose orders pursuant to s10 Crimes (Sentencing Procedure) Act 1999 provided that they are made pursuant to s10(1)(b). He emphasised that considerable police resources had been deployed in relation to this protest. He also submitted that a dismissal simpliciter would send the wrong message to the community. Section 10 is intended for cases where a person is found guilty but the court considers it inappropriate to record a conviction. As far as the current proceedings are concerned, (assuming s10 is relevant), two options fall to be considered. First, whether, in all the circumstances the relevant charge should be dismissed (see s10(1)(a)). Second, whether the defendant should be discharged without conviction on condition that he or she should be required to enter into a good behaviour bond for a period not exceeding two years (see s10(1)(b)). In deciding whether to dismiss a charge a court is obliged to have regard to the matters recited in s10(3) namely the person's character, antecedents, age, health and mental condition, the trivial nature of the offence and whether there were extenuating circumstances in which the offence was committed. Under both the current and the previous legislation a court may also consider any other matter it thinks proper. It should be noted that under the existing case law (see R v Paris (2000) NSWCCA 83 and R v Piccin (No 2) (2001) NSWCCA 323) that the offence does not need to be trivial in order to be dealt with pursuant to s10. The current legislation replaces s556A Crimes (NSW) which had a similar intention and effect. (As to this provision see Cobiac v Liddy (1969) 119 CLR 257). As mentioned earlier, I am obliged to consider the individual circumstances of each defendant. There is no relevant difference in the conduct in which each of the defendants engaged. However, there is some variation in the subjective circumstances and I refer to these briefly below. Brian Michael Dark: This defendant is 75 years old and has no prior criminal record. He is well known in the Blue Mountains area for his conservation work and community activity. He is the founder of the Varuna Writer's Centre at Katoomba. Hugh Paterson: This defendant is 47 years old and has no prior criminal record. He received the benefit of s556A in 1986 in relation to disobeying the direction of a harbour master. He is well known in the Blue Mountains as a bush regeneration expert and educator as well as for his conservation activities. Somewhat ironically, in the circumstances of this case, his strongest praise comes from the National Parks and Wildlife Service. Marie LeBreton: This defendant is 20 years old and has no prior criminal record. Jennifer Kee: This defendant is 57 years old and has a previous minor matter in England in 1969 which I consider irrelevant to the matter before me. She is well known in the Blue Mountains for her community and conservation activity. She has a national reputation as an artist and fashion designer. David Simmons: This defendant is 29 years old and has one prior matter relating to malicious damage in 2003. He works as a bush regenerator for the Blue Mountains City Council. Emily Coleing: This defendant is 38 years old and has one prior matter of a similar nature over ten years ago which resulted (on appeal) in the conviction being overturned. I have considered the lack of violence, lack of property damage, the excellent character of each defendant, the lack of prior convictions (except as noted earlier), the altruistic motives of those concerned, the guilty plea of each of them, their co-operation with the police, and the fact that each has been subjected to arrest and temporary detention (and I do not suggest by this that there was anything improper in this process). Having considered the objective and subjective circumstances of each defendant, and having considered the submission of the prosecutor Sergeant Watson, I have reached the conclusion that each defendant is entitled to the benefit of the court's discretion pursuant to s10. I find each of the defendants guilty as charged but, having regard to the criteria enumerated in s10(3) Crimes (Sentencing Procedure) Act 1999, in each case, I dismiss the charge as far as Brian Michael Dark, Marie LeBreton and Jennifer Kee are concerned. In relation to Hugh Paterson, Emily Coleing and David Simmons, each defendant is discharged without conviction upon condition that she or he enter into a bond pursuant to s10(1)(b) Crimes (Sentencing Procedure) Act 1999 for a period of one year. George Zdenkowski
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