C -v- WA POLICE [2024] WASC 79 (22 March 2024)

1. The appellant seeks leave to appeal against the learned magistrate's decision on the grounds that (i) her Honour arrived at a decision without proper evidence and (ii) her Honour failed to give proper reasons for her decision.
2. The respondent concedes that the magistrate erred in taking judicial notice of the Federal Government's response to climate change without giving the parties an opportunity to be heard in relation to whether judicial notice could be taken and if so, what inferences, if any, could have been drawn from those matters.
3. The respondent invokes the proviso in s 14(2) of the Criminal Appeals Act 2004 (WA) and submits the appeal should be dismissed on the ground that there has been no substantial miscarriage of justice because the court can be satisfied that, on the evidence before the magistrate, the appellant's conviction was inevitable.
4. At the conclusion of the oral hearing the appellant was given leave to file and serve written submissions addressing the legal principles derived from the authorities relied on by the respondent. The appellant filed and served supplementary submissions on 6 February 2024.
5. I have concluded that although the magistrate made an error, no substantial miscarriage of justice has occurred and a conviction was inevitable. The appellant's reliance on the defence of emergency was misconceived. The offending in this case was minor and the appellant and those who participated in the protest behaved both peacefully and co-operated with police. Those factors should not, however, be allowed to disguise the danger that lies in permitting a member of the community to disobey the law because they consider such disobedience to be an expedient method of achieving a change in government policy. Such an approach to the administration of criminal justice would undermine the rule of law on which our civil society depends. It would amount to an acceptance that circumstances may exist in which members of the community should be free to pick and choose the laws they obey according to whether those laws accord with their own values and beliefs. The appeal will be dismissed.

1. At the trial, which took place on 26 May 2023, the prosecution called three police officers who witnessed the trespass. It is unnecessary to refer to their evidence because in his closing submissions the appellant stated:

The evidence that we heard from the prosecution witnesses was a summary of the physical elements of the case, which I have at no point denied during these proceedings. I have stated that my intention was to trespass knowingly and to get arrested while doing so.

...

We have heard that I was requested to leave. We have confirmed the elements of the trespassing charge.

1. The appellant's evidence about his motivation for the trespass was as follows:[4]

The protest in question, the motivation behind the protest from myself, was to call attention to the fact that at that stage, the WA government had not passed any Net Zero or emissions reductions targets in legislation. There had been media that I consumed in terms of articles, videos, documentaries, statements from people like the UN General Secretary, the International Climate Council, stating the legitimacy of the climate emergency, the need to address it and the need to do so quicker than we are currently doing.

The group that I am involved with, we have generally taken the position of not, in recent times, disrupting traffic as other groups have done because of the hostility and the perceived damage that that may do to the cause. We then decided we collectively decided to take an approach of purely targeting either big business, like fossil fuel company headquarters or government offices, like MP offices if they are a portfolio holder of a relevant portfolio.

...

So while the motivation for the protest was disruption, because in my belief, traditional political campaigning like I have been a part of with involvement in electoral campaigns with the Greens as well as other political activism outside of environmental stuff I have been an Amnesty International representative in schools, speaking to children about human rights - from all of those experiences, it was my perception, as well as from media I consumed, that the legal avenue of protest, not just in our cause but historically, had not succeeded as effectively as disruptive action in achieving the desired outcome.

And it was my view that, compared to previous historic social justice issues, that the climate crisis was far more of a significant impending, all-encompassing emergency that threatens collective life on earth rather than just a small community or a single nation. And based on the information that I had seen, which stated that we weren't doing enough to address this issue, that was what motivated us to cause the disruptive protest whilst still trying to minimise the disruption to what was purely necessary.

1. When the magistrate suggested to the appellant that the climate emergency was not a 'sudden emergency', the appellant responded as follows:[5]

I would disagree with the assertion based on the fact that the timeline in terms of reaching Net Zero may be eight years but considering that the change that is necessary in order to achieve that is the restructuring of not only our entire energy production systems but also our food, our transport, basically, every single part of every single person's lives needs to be changed in Net Zero.

And so not only is there an immediacy of making as significant a change as we possibly can to everything as quickly as possible to limit any increases in temperatures that we possibly can, but also that the eight-year window is to reach a tipping point that doesn't include the impacts that we have already seen, which - those impacts are basically set in stone now. And so reaching Net Zero or not, any decrease whatsoever, the sooner the better, in terms of ultimately the reduction in loss of life and harm that is caused, which increases with increases in temperatures or emissions.

1. The following exchange took place between the magistrate and the appellant concerning why the appellant considered trespassing a necessary response to the issue of climate change:[6]

HER HONOUR: Just so I fully understand your evidence, you say you believed there was an extraordinary emergency, being the climate change issue, and that you considered that trespassing was a necessary response. Why did you consider it to be a necessary response?

ACCUSED: My understanding, your Honour, was that in the instances of Extinction Rebellion and other direct action protest groups in the UK and other places, their disruptive tactics resulted in a far more streamlined political process of a climate emergency being declared like in the UK, which once the climate emergency is declared, it means that there is then action that sort of needs to be taken by the government.

And so it was a combination of being aware that action being taken by our government wasn't fast enough and that also, historically, within Extinction Rebellion or other movements, disruptive protest was the most effective way of getting the attention of those with authority to act and also encouraging them to do so because of the pressure of civil disobedience compared to just standard petitioning or political campaigning.

HER HONOUR: And you considered your action in trespassing to be a reasonable response to the emergency?

ACCUSED: Yes, your Honour. It was my belief that the offices at Dumas House, being the parliamentary offices where, when Parliament is not sitting, portfolio holders are carrying out the duties, that that would be the most direct message that I could apply to those with the power to make decisions reducing emissions. And yes, in terms of locally, it was the State Parliament. So that was the highest authority to make decisions for our State. WA has the highest emissions of any State. And our emissions are increasing to my understanding. And so I could have potentially travelled to Tasmania to join protest groups there or any other State. But WA seemed like the most reasonable place. And the parliamentary offices seemed like the most reasonable place to protest, WA's emissions being the highest in the country as well as per capita, Australia's emissions being significantly higher than the majority of countries as far as I understood it.

1. The prosecution submitted the appellant could not rely on the defence of emergency as the circumstances were not of a sudden or extraordinary nature. The prosecution submitted:

It is ultimately a matter of the court to determine in the event the defence is raised, but we would anticipate that the actions of protesters would not be found to be consistent with how an ordinary person exercising ordinary powers of self-control may behave. The rationale for this is that there is no imminent situation that exists, and there are alternate avenues available. The defence of extraordinary emergency is usually raised in circumstances where an individual is confronted by a sudden situation and they do not have time or ability to process rational thinking.

1. In his closing submissions, the appellant contended that he had made out the defence of emergency:[7]

I feel that I have adequately demonstrated that my actions were reasonable in the circumstances. My belief was sincere. And ultimately, your Honour, I put it in your hands to assess the final condition which is to decide ultimately whether what we have heard today, if presented to a reasonable person, would lead them to believe that my actions on the day in question were a reasonable cause for the offence of trespassing.

1. The magistrate reserved her decision and delivered oral reasons on 29 June 2023. Having directed herself in conventional terms in relation to the onus and standard of proof and the elements of the offence, the magistrate summarised the evidence of the prosecution's witnesses and the evidence of the appellant.
2. The magistrate found that she was satisfied beyond reasonable doubt of the elements of the offence. Her Honour went on to find that the appellant held 'honest, genuine and reasonable beliefs as to the risk global warming is causing to the planet and society as a whole and that his beliefs were not fanciful or unreasonably held'. Her Honour continued:[8]

The risks associated with climate change and the need to address climate change is a matter of international concern and has been the subject of international action involving Australia. It's a matter of judicial notice I can take into regard that Australia is a party to the Paris Agreement which came into force in 2016. The Paris Agreement aims to strengthen the global response to climate change by holding the increasing global average temperature to well below two degrees above pre-industry levels and pursuing efforts to limit temperature increases to 1.5 degrees Celsius.

Consistent with Australia's international obligations, a few months after the protest, on 24 January 2023, the state government announced the introduction of climate change legislation to establish a framework for responsible emissions reductions to meet was goal of net zero emissions by 2050. It was said that the legislation would create statutory requirements for the state government to set interim emission-reduction targets and develop strategies to adapt to the impacts of climate change.

At the time of the announcement, the Climate Action Minister, Reece Whitby, said:

'Climate change is the greatest challenge of our lifetime. We need to take decisive action this decade. This legislation will help accelerate our transition to net zero emissions in a responsible and achievable way.'

The introduction of legislation at a state level and Australia's commitment to the Paris Agreement, reflect that climate change is an issue that requires timely and international action. They're matters I give judicial notice to.

1. The magistrate found that the appellant had met the evidentiary burden on him to raise the defence of emergency:[9]

I'm satisfied on the accused's evidence, on the balance of probabilities, that at the time of the protest at Dumas House, [C] believed that: firstly, the harm associated with global warming constituted an extraordinary emergency due to the serious risk of harm to the planet and its occupants if global warming is not addressed before the end of this decade; secondly, that trespassing on Dumas House and participating in the protest was a necessary response to that emergency, particularly given [C's] understanding of the significant changes that would need to be put in place to ensure the target of zero omissions could be met by the end of the decade; and thirdly, trespassing on Dumas House and participating in the protest was a reasonable response to the emergency in the circumstances he believed them to be.

In particular I am satisfied that he turned his mind to the level of impact his involvement in the protest would have on others and their exercise of their lawful rights and that he did not more than he considered necessary to seek to call attention to climate change emergency by his actions on that day.

1. The critical passages of the magistrate's reasoning to the conclusion that the prosecution had negated the defence of emergency were as follows:[10]

In considering this case and whether the prosecution have negated the defence of emergency by establishing that there were no reasonable grounds for the accused's relevant beliefs, I have had regard to the actions taken by the Federal Government to address climate change which are publicly available and matters that I consider I can give judicial notice to.

These include the fact Australia signed the Paris Agreement and on 16 June 2022 the Federal Government lodged a new emission reduction commitment setting a target to reduce greenhouse emissions by 43 per cent below 2005 levels by 2030. Further, on 8 September 2022 the Federal Government passed new climate change legislation, being the Climate Change Act 2022, which enshrined these targets into law. These steps were all taken prior to the protest in which [C] participated in in November 2022.

While the State Government did not introduce their legislation until January this year, it is the case that the Federal Government had before then taken steps to enshrine emission reduction targets. Those steps were taken prior to the present protest. In the circumstances, I do not accept that there were reasonable grounds for the accused's belief that trespassing on Dumas House was a necessary or reasonable response to the climate change emergency, as he believed there to be, given that action was already underway to address the climate change concerns.

As I said earlier, the defence of emergency exists to many cases where the circumstances overwhelmingly compel disobedience to the law. The corollary is that the law cannot leave people free to choose for themselves which laws they will obey or to construct and apply their own sets of values inconsistent with those implicit in the law.

In the present case, whilst I am satisfied [C] genuinely believed there was a climate emergency and that he genuinely holds the beliefs that he does for the need for urgent action to be taken to address the emergency, given the actions that were already on foot to address this at a political level and given avenues open for lawful protest, I am satisfied beyond reasonable doubt that the circumstances did not objectively or overwhelmingly compel disobedience to the law.

I find that [C] had options open to him and he chose to engage in disobedience of the law rather than engaging in lawful actions to seek to advance his concerns. Choosing one option over others does not establish necessity for the wrongful act, nor does it support a finding that the response was based on objectively reasonable grounds.

1. The magistrate then considered whether there was anything that amounted to a lawful excuse to the offence as provided for under s 70A(2) of the Criminal Code and held that there was not. It is unnecessary to refer to her Honour's reasoning in relation to lawful excuse because the appellant confirmed that his case was confined to the defence of emergency.[11]

1. Part 2 of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act) governs appeals from courts of summary jurisdiction. The appellant requires leave to appeal in respect of each ground of appeal.[12] Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding.[13] To meet this threshold the ground of appeal must have a rational and logical prospect of succeeding, in effect, having a real prospect of success.[14] If leave to appeal is refused, the appeal is taken to be dismissed.[15]

1. The appellant's appeal notice filed on 18 July 2023 contained two grounds of appeal:

(1) The magistrate arrived at a decision without proper evidence.

(2) The magistrate failed to give proper reasons for their decision.

1. As noted in the overview, the respondent concedes that the magistrate erred in taking judicial notice of action taken by the Federal and State Government against climate change without giving the parties an opportunity to be heard. Section 14(2) of the Criminal Appeals Act 2004 (WA), however, empowers the court to dismiss the appeal if it considers that no substantial miscarriage of justice has occurred, even if a ground of appeal might be decided in favour of the appellant.

1. Section 70A(2) of the Criminal Code provides that a person who, without lawful excuse, trespasses on a place commits an offence.
2. Section 70A(1) defines 'trespass' as follows:

(a) to enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place; or

(b) to remain in the place after being requested by a person in authority to leave the place; or

(c) to remain in a part of the place after being requested by a person in authority to leave that part of the place.

1. In Wilson v McDonald,[16] Martin CJ (with whom Wheeler JA & Beech AJA agreed) held that when a prosecution is brought under s 70A, the court must resolve two separate and distinct questions:[17]

The first is whether the prosecutor has established, beyond a reasonable doubt, that the defendant committed a trespass as defined by the section. The second question is whether the defendant has discharged the onus of proving, on the balance of probabilities, that he or she had a lawful excuse for the trespass.

1. Martin CJ observed the meaning of 'lawful' in the context of s 70A(2) to mean 'an excuse that is not forbidden rather than an excuse which is positively authorised by law'.[18]

Defence of emergency - the statutory provision and principles

1. Section 25(2) provides that person is not criminally responsible for an act done or an omission made in an emergency under s 25(3). Section 25(3) is as follows:

(3) A person does an act or makes an omission in an emergency if -

(a) the person believes -

(i) circumstances of sudden or extraordinary emergency exist; and

(ii) doing the act or making the omission is a necessary response to the emergency; and

(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

1. Section 25(3) has been described as having four limbs. The first and second limbs (s 25(3)(a)(i) and s 25(3)(a)(ii)) require an assessment of the appellant's subjective beliefs. The third and fourth limbs (s 25(3)(b) and s 25(3)(c)) require objective assessments.
2. In Webster & Co v Australasian United Steam Navigation Co Ltd,[19] Griffith CJ referred to the defence of emergency under s 25 of the Criminal Code in Queensland as 'rules of common sense as much as rules of law'.[20]
3. In R v Rogers,[21] Gleeson CJ (with whom Clarke JA & Ireland J agreed) examined the origins of the common law defence of necessity and drew on the analysis undertaken in Perka v The Queen by Dickson J of the Supreme Court of Canada. [22] Gleeson CJ said:[23]

Using the term 'defence' without any implications as to onus of proof, his Lordship pointed out (at 399) that it has been universally recognised that, if the defence of necessity is to have a place in the criminal law, it must be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale.

...

Dickson J said (at 398) that the idea behind the defence of necessity was that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self­preservation or altruism, overwhelmingly impel disobedience. In Moore v Hussey (1609) Hobart 93 at 96; [1792] EngR 1613; 80 ER 243 at 245, Hobart CJ said that all laws admit certain cases of just excuse, when they are offended in the letter, and when the offender is under necessity. However, the writings on the subject all observe the extreme caution with which the concept has been regarded.

The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.

[I]t has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. However, I accept the appellant's submission that, consistently with the approach to self-defence taken by the High Court in Zecevic, it is now more appropriate to treat those 'requirements', not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.

...

The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined. To adopt the language of Dickson J in Perka, the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law.

1. Although Gleeson CJ's observations were made in the context of the common law defence of necessity in Floyd v Western Australia,[24] McLure P (Newnes & Mazza JJA agreeing) cited R v Rogers for the proposition that the statutory defence of emergency exists to meet cases where the circumstances overwhelmingly impel disobedience to the law. The corollary is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those within the law.[25]
2. In Perka, in the context of the common law defence of necessity, Dickson J expressed the point in this way:[26]

At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had not other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable.

1. In Criminal Law in Queensland and Western Australia,[27] the learned authors referred to the judgment of Dickson J in Perka and his Honour's conceptualisation of the defence of necessity as an excuse and not a justification and observed:[28]

The phraseology [in s 25] suggests that the defence was conceived as a concession to human fraility and emotion rather than as a clear acceptance, that in some circumstances, breach of the terms of a criminal defence may be justified.

In that respect the language of s 25 is consistent with the concepts underlying the defence as explained in the authorities to which I have referred.

1. It is unnecessary for an emergency to be both sudden and extraordinary. The emergency may be either sudden or extraordinary.[29] In Warnakulasuriya v The Queen,[30] Buss JA (as his Honour then was) stated the term 'extraordinary emergency' (as it appeared in s 10.3 of the Criminal Code Act 1995 (Cth) - a provision analogous to s 25 of the Criminal Code) in its natural and ordinary meaning:[31]

[D]oes not necessarily connote circumstances involving an existing, imminent or anticipated danger that requires immediate action. Circumstances involving an existing, imminent or anticipated danger may constitute an 'extraordinary emergency' even though the danger does not require immediate action.

Delay by an accused in responding to alleged circumstances of emergency, which he or she allegedly reasonably believed existed, is a relevant factor in deciding whether the Crown has negatived beyond reasonable doubt a matter specified in para (a), para (b) or para (c) of s 10.3(2), but the delay is not, of itself, decisive.

1. The explanation of the difference between a sudden emergency and an extraordinary emergency in Yeo SMH 'Necessity under the Griffith Code and the Common Law',[32] was cited with evident approval by members of the Court of Appeal in Johnson v Western Australia.[33] It is helpful to reproduce that explanation:

A sudden emergency is one which comes upon the accused unexpectedly, catching her or him off-guard. Inherent in this requirement of suddenness is a sense of immediate danger, one which will occur almost instantaneously unless the accused takes counter‑vailing action. The effect of such an emergency is to prevent the accused from having the opportunity for calm reflection and from mustering her or his resolve or fortitude. Instances include hearing a loud noise at the back of a motor vehicle while driving it; being told that one's horses had escaped onto a public road thereby posing a danger to road-users; being chased suddenly at high speed by a car full of thugs; and losing one's balance on a boat and falling overboard. On the other hand, an extraordinary emergency does not necessarily share the same sense of unexpectedness or immediacy of the threatened danger. The extraordinary nature of the emergency denotes a situation of extreme gravity and abnormal or unusual danger. In these cases, the emergency might well have occurred suddenly but the danger created thereby persists over a period of time. There is therefore more opportunity for calm reflection and the mustering of one's resolve than in cases of sudden emergencies. For example, there could be a sudden outbreak of war which then continues and poses a life-threatening danger to people living in the war zone. Another example is of a sudden storm which forces crew members onto a raft where they survive for a considerable period in ever-increasing danger of death by thirst and starvation. Although a sudden emergency may be distinguishable from an extraordinary one, both have in common the application of immense pressure on persons caught in them. The defence of excusatory necessity enables such persons to escape criminal responsibility should they take preventative measures which ordinary people could likewise have taken under similar threatening circumstances. (footnotes omitted) (emphasis supplied)

1. The appellant carried the evidential burden of raising the defence of emergency, the test being whether there was evidence which, taken at its highest in favour of the appellant, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived.[34]
2. In Thomas v Christian,[35] Hall J (as his Honour then was) made the following observations concerning the evidentiary burden imposed on the appellant:[36]

In essence this means that there must be evidence that raises the reasonable possibility that each of the elements of the defence existed. In practical terms this often means that an accused person will need to give or adduce evidence that provides a factual foundation for the defence. This is why it is sometimes said that the defence has an evidential onus. However to describe this as an onus is something of a misnomer as there can be circumstances in which the factual basis for the defence is provided by evidence adduced from prosecution witnesses. In any event, where there is evidence that could support such a defence the onus is then on the prosecution to exclude that defence beyond reasonable doubt. If the defence of emergency is not excluded to this standard the accused is entitled to be acquitted.

1. In NPK v Western Australia,[37] the Court of Appeal observed that the prosecution may negate the defence of emergency by proving beyond reasonable doubt that:[38]

(a) the accused did not hold either of the beliefs specified in s 25(3)(a); or

(b) the accused's act or omission was not a reasonable response to the emergency in the circumstances that the accused believed them to be; or

(c) there were not reasonable grounds for the accused's beliefs.

1. The facts of the present case have some similarities to the facts in Rolles v Commissioner of Police.[39] In that case the appellant was convicted of three charges, one of which included trespass on a railway. The appellant trespassed onto the rail infrastructure in Bowen, Queensland and his actions interfered with the normal operations of that railway track. In the primary court, the appellant relied on the defence of emergency in s 25 of the Criminal Code Act 1899 (Qld).[40] The appellant argued his offence was a non‑violent act of civil disobedience due to the lack of action being taken to address the imminent threat of climate change.
2. The magistrate found that for the defence to apply there should be evidence before the court that the appellant honestly believed on reasonable grounds that he or others were placed in such sudden or imminent danger that he was required to act immediately as a response to that dangerous situation. The magistrate dismissed the defence, finding that the appellant:[41]

[W]as not required to act immediately in response to being confronted with a sudden imminent emergency or state of danger. The defendant's own evidence was that he had held personal beliefs on the dangers of climate change for a number of years. Put simply, on the evidence, and in the circumstances existing at the time, the defendant was not confronted with a situation amounting to a sudden or extraordinary emergency as provided for in s 25.

...

Section 25 does not provide a lawful excuse for a person who knowingly breaks the law, as a planned and premeditated act of civil disobedience in pursuance of their own self-driven subjective, environmental, social or moral agendas. In the present case, clearly there was no legal excuse or privilege extended to the defendant to act as he did on the grounds of necessity and response to a perceived moral obligation or responsibility to combat the lack of action being taken by authorities in relation to the effects of climate change.

1. On appeal to the District Court of Queensland, the appellant argued the magistrate had erred in determining emergency did not arise on the evidence. Rinaudo AM DCJ upheld the dismissal of the defence of emergency. His Honour observed:[42]

Whilst as I said, the Appellant was convinced the damage being done to the planet by global warning created a sudden or exceptional emergency justifying his actions, the Acting Magistrate was not satisfied such a sudden or extraordinary emergency did exist which would afford the Appellant a defence under s 25 of the Criminal Code. I agree with the reasoning of the Acting Magistrate that the emergency of climate change does not rise to the level of sudden or extraordinary. Whilst some may argue climate change is an extraordinary emergency, I note an emergency for the purposes of s 25 must require immediate action. On the Appellant's own submission he has been aware of the threat of climate change for more than 30 years.

1. Although the provisions of s 25 of the Criminal Code (Qld) differ from s 25 of the Criminal Code, the observations of the magistrate in Rolles (though framed by reference to the concept of 'lawful excuse') to the effect that s 25 does not permit a person to break the law 'as a planned and premeditated act of civil disobedience in pursuance of their own self-driven subjective, environmental, social or moral agendas' apply with equal force to s 25 of the Criminal Code.

Ground 1 - verdict reached 'without proper evidence'

1. The phrase 'without proper evidence' incorporated in ground 1 is somewhat elastic and, although this was not the basis upon on which the appellant argued that the ground should be upheld, it can accommodate the error the respondent accepted was made by the magistrate.
2. The magistrate took judicial notice of the following facts:

(a) Australia is a party to the Paris Agreement which came into force in 2016;

(b) the aims of the Paris Agreement;

(c) on 24 January 2023 the State Government announced the introduction of climate change legislation to establish a framework for responsible emissions reductions to meet the goal of net zero emissions by 2050;

(d) the observations of State Government Minister in relation to the State's proposed climate change legislation;

(e) on 16 June 2022 the Federal Government lodged a new emission reduction commitment setting a target to reduce greenhouse gas emissions by 43% below 2005 levels by 2030; and

(f) on 8 September 2022 the Federal Government passed the Climate Change Act 2022 (Cth) which enshrined the targets in (e) into law.

1. The magistrate relied on these facts for the purposes of making the evaluative judgment not to accept that reasonable grounds for the appellant's belief that trespassing on Dumas House was a necessary or reasonable response to the climate change emergency existed and, in effect, not accepting that the trespass was an objectively reasonable response to the emergency the appellant believed existed.
2. Judicial notice may be taken of facts that are so generally known that every ordinary person may be reasonably presumed to be aware of them.[43] For the purposes of this case it is unnecessary to consider the extent of the matters of which the magistrate was permitted to take judicial notice. Rather, the problem with the approach adopted by her Honour is that she did not provide the parties with an opportunity to be heard in relation to whether it was permissible for her to take the judicial notice of the facts of which she took notice or to be heard in relation to what conclusions her Honour should draw from those facts. In adopting this approach the magistrate denied the appellant procedural fairness.[44]
3. I would grant leave to appeal in relation to ground 1.

The proviso - 'no substantial miscarriage of justice'

1. Section 14(1)(b) of the Criminal Appeals Act empowers the court to allow the appeal. Section 14(2), however, provides that:

(2) Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

1. The operation of s 14(2) of the Criminal Appeals Act was explained by Mitchell J (as his Honour then was) in WS v Gardin as follows:[45]

In my view, where the reasons of a summary court indicate that the court has made an error of fact, but that the error was inconsequential or immaterial to the decision to convict, then this court can conclude that no substantial miscarriage of justice has occurred by reason of the error. That will be so whether or not this court is able to be satisfied, beyond reasonable doubt, of the accused's guilt from a review of the trial record. If the only errors established are factual errors of this kind, then this court will appropriately dismiss the appeal under s 14(2) of the CA Act.

However, where the primary court's reasons show the error of fact to be material to the decision to convict then there will ordinarily have been a substantial miscarriage of justice unless this court is satisfied on a review of the trial record that conviction was inevitable on the evidence adduced at trial.

This conclusion gives weight to the requirement that a summary court is required to give reasons for its decision, and the reasons will ordinarily indicate whether an error of fact is inconsequential. If an error of fact may have significantly influenced a finding of guilt, depriving an accused of an opportunity of acquittal, then it may be fairly concluded that the trial process has miscarried. In such a case it will be no answer to say that the appellate court believes the accused to be guilty and it was merely open to the trial court to adopt a different view. In such a case it would also be open to the trial court, which is in the best position to determine questions of fact on evidence to has seen and heard, to take a different view from the appellate court.

1. In Morgan v Cramer,[46] Hall J (as his Honour then was) made observations to substantially the same effect of those of Mitchell J in WS v Gardin and explained:[47]

The success of the grounds of appeal does not necessarily result in the setting aside of the acquittal and the substitution of a conviction. Section 14(2) of the Criminal Appeals Act 2004 (WA) provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

This form of the proviso needs to be understood as operating in a context where, unlike a jury, the magistrate provides detailed reasons for his or her decision. This enables an assessment to be made of whether any error was in fact material to the result, rather than merely having the potential to have such an effect.

Whether the error is one of fact or law is relevant to the question of whether there has been no substantial miscarriage of justice. Where the error is one of law, there may be circumstances where the error has not affected the outcome, but there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.

1. A denial of procedural fairness is an error of law not an error of fact, but the principles explained in the cases to which I have just referred apply to errors of law. The essential question is: did the magistrate's denial of procedural fairness deprive the appellant of an opportunity of acquittal?

1. In my judgment the magistrate's error did not deprive the appellant of an opportunity of acquittal and thus did not occasion a substantial miscarriage of justice. In broad terms there are two reasons for reaching this conclusion:

(1) The appellant did not discharge the evidentiary burden required to raise the defence of emergency.

(2) Alternatively, if the appellant discharged the evidentiary burden the defence was negated.

1. As I said earlier, the appellant's reliance on the defence of emergency was misconceived. In my respectful view, it was unnecessary for the magistrate to have relied, to any extent, on the matters relating to the Federal and State Governments' responses to climate change to conclude the defence of emergency failed.
2. The circumstances relied on by the appellant were not capable of engaging the defence of emergency. The offence was committed by the appellant 'to call attention to the fact that at that stage, the WA government had not passed any Net Zero or emissions reductions targets in legislation'. This was not a circumstance that overwhelmingly impelled disobedience to the law. Rather, the appellant chose disobedience to the law because, in his view, it was the most effective strategy to achieve his desired policy response to climate change from the State Government. The appellant had considered and discounted other strategies. Put another way the appellant had choices as to how he could act to achieve his goals and he had evidently taken the time to consider the choices open to him. The appellant was not placed in a situation in which he had no viable or reasonable choices available to him other than to commit the offence of trespass.
3. The appellant's concerns over the State Government's failure to enact net zero or emission reduction targets did not constitute an emergency of the nature comprehended by the expression 'extraordinary emergency' in s 25(3)(a)(i). To elevate the circumstances in which the appellant chose to break the law to the status of 'an extraordinary emergency' within the meaning of s 25(3) would undermine the rule of law. To paraphrase the observations of Gleeson CJ in R v Rogers it would leave those who hold genuine beliefs about matters of governmental policy free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those within the law. This would, in effect, have the potential to validate illegal acts because they are politically expedient and thereby introduce undue subjectivity into the administration of the criminal law.[48]
4. Assuming in the appellant's favour, however, that the circumstances on which he relies were capable of constituting an extraordinary emergency within the meaning of the statutory defence, the intentional disobedience to the law in which he engaged because he considered it was the most expedient method of bringing about a change in government policy was patently not a reasonable response to that emergency. To hold otherwise would countenance the situation described by Gleeson CJ in R v Rogers to which I have referred in the preceding paragraph.

1. If I am wrong, and the appellant had discharged the evidentiary burden on him and raised the defence of emergency, then I consider the defence was negated. The objective elements of the defence introduced by s 25(3)(b) and (c) require value judgments to be made by the trier of fact having regard to all of the circumstances established by the evidence.
2. In my judgment, that defence fails at two levels:

(a) Objectively, the trespass was not a reasonable response to the extraordinary emergency the appellant believed to have existed for the reasons already given.

(b) There were no reasonable grounds for believing that the trespass was (to rely again on the language of Gleeson CJ in R v Rogers) a necessary response as distinct from the appellant's preferred response, such preference relying on the appellant's assessment of what would be the most politically effective response.

1. At the risk of unnecessary repetition, the circumstances believed to exist by the appellant did not impose on him immense pressure impelling him to break the law. There were alternative courses of action open to the appellant. Disobedience to the law was chosen by the appellant because he considered that it was likely to be the most effective method of achieving his political goals. There were no reasonable grounds for considering it was necessary and objectively, in the circumstances, disobedience to the law was not reasonable.
2. I grant leave to appeal because the magistrate made an error but I will dismiss the appeal on this basis that no substantial miscarriage of justice has occurred.

1. Ground 2 alleges the learned magistrate failed to provide proper reasons for her decision. The appellant does not address this ground of appeal in his written submissions.[49]
2. The respondent contends that the learned magistrate provided proper reasons for her decision on 20 June 2023 in accordance with the principles articulated in Strahan v Brennan[50] and Gerinoni Nominees Pty Ltd v Cullen.[51]
3. As noted earlier, the magistrate reserved her decision and delivered her reasons for decision on 20 June 2023. There is nothing in the transcript to suggest her Honour departed from the principles discussed in Strahan v Brennan and Gerinoni Nominees Pty Ltd v Cullen.
4. Leave to appeal in respect of ground 2 is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] These reasons have been anonymised to preserve the benefit of the spent conviction order.

[4] Transcript of primary court dated 26 May 2023, 27.

[5] Transcript of primary court dated 26 May 2023, 29 - 30.

[6] Transcript of primary court dated 26 May 2023, 30 - 31.

[7] Transcript of primary court dated 26 May 2023, 40.

[8] Transcript of primary court dated 20 June 2023, 10 - 11, 13.

[9] Transcript of primary court dated 20 June 2023, 11.

[10] Transcript of primary court dated 20 June 2023, 14.

[12] Criminal Appeals Act 2004 (WA) s 9(1).

[13] Criminal Appeals Act 2004 (WA) s 9(2).

[14] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[15] Criminal Appeals Act 2004 (WA) s 9(3).

[16] Wilson v McDonald [2009] WASCA 39; (2009) 193 A Crim R 63.

[19] Webster & Co v Australasian United Steam Navigation Co Ltd [1902] St R Qd 207.

[20] Webster & Co v Australasian United Steam Navigation Co Ltd (217).

[21] R v Rogers (1996) 86 A Crim R 542.

[22] Perka v The Queen (1984) 14 CCC (3d) 385.

[24] Floyd v Western Australia [2013] WASCA 33.

[25] Floyd v Western Australia [25], see also Petersen v Western Australia [2016] WASCA 66 [43].

[27] Criminal Law in Queensland and Western Australia (2015) 7th Ed, Colvin, McKechnie and O'Leary.

[28] Criminal Law in Queensland and Western Australia [16.23].

[29] Warnakulasuriya v R [2012] WASCA 10; (2012) 261 FLR 260 [49] (Buss JA).

[31] Warnakulasuriya v R [85] (Buss JA).

[32] Yeo SMH, 'Necessity under the Griffith Code and the Common Law' (1991) 15 Criminal Law Journal 17 at 23 - 24.

[33] Johnson v Western Australia [2009] WASCA 71; (2009) 40 WAR 116 (Owen & Miller JJA [60], Buss JA [123].

[34] Petersen v Western Australia [42] citing Braysich v R [2011] HCA 14; (2011) 243 CLR 434 [36]; Floyd v Western Australia [2013] WASCA 33 [21].

[35] Thomas v Christian [2021] WASC 151.

[37] NPK v Western Australia [2020] WASCA 50.

[39] Rolles v Commissioner of Police [2020] QDC 331.

[40] Section 25 of the Criminal Code (Qld) is in the following terms: 'Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could reasonably be expected to act otherwise'.

[41] Rolles v Commissioner of Police [26] - [27].

[42] Rolles v Commissioner of Police [40].

[43] Culverwell v Ginbey [2016] WASC 3 [192] citing Holland v Jones [1917] HCA 26; (1917) 23 CLR 149, 153.

[44] Fabrizi v Grasso (Jnr) as the Legal Personal Representative of Mr Grasso (Deceased) [No 2] [2022] WASCA 27 (Quinlan CJ, Beech & Pritchard JJA), [91] - [92].

[45] WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [239] - [241].

[46] Morgan v Cramer [2019] WASC 68.

[49] Appellant's outline of submissions filed 2 November 2023; appellant's amended outline of submissions filed 7 November 2023.

[50] Strahan v Brennan [2014] WASC 190 [89] - [92] (Martin CJ).

[51] Gerinoni Nominees Pty Ltd v Cullen [2022] WASC 337 [44] - [45] (Archer J).