R v BURGESS; R v SAUNDERS

Crimes Act 1900 ss194, 195(a), 418, 422 Criminal Appeal Act 1912 s5F LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s44(1) International Criminal Court Act 2002 Model Criminal Code

Jones and Milling & Ors v Gloucestershire Crown Prosecution Service [2004] EWCA Crim 1981 Packett v The Queen (1937) 58 CLR 191 Palmer v The Queen [1978] AC 814 R v Cinous [2002] 2 SCR 3, 2002 SCC 29 R v Howe (1958) 100 CLR 448 R v Katarzynski [2002] NSWSC 613 CASES CITED: R v Marshall (unreported, NSWCCA 17 July 1990) R v Muratovic (1967) Qd R 15 R v Phillips and Pringle (1973) 1 NSWLR 275 R v PRFN (unreported, NSWCCA 21 June 2000) Rogers (1996) 86 A Crim R 542 Viro v The Queen (1978) 141 CLR 88 Zecevic v DPP (Victoria) (1987) 162 CLR 645

Regina PARTIES: David BURGESS Will SAUNDERS

E Wilkins (Crown) COUNSEL: J Doris (Appellants)

S Kavanagh (Crown) SOLICITORS: S Dowson (Appellants)

IN THE COURT OF CRIMINAL APPEAL 60143/04 60183/04

ADAMS J HISLOP J NEWMAN AJ

23 FEBRUARY 2005 REGINA v David BURGESS REGINA v Will SAUNDERS Judgment 1 ADAMS J: The appellants, David Robert Burgess and Will Saunders, respectively aged 34 and 43 years, were convicted following their trial before Judge Blackmore and a jury of an offence of maliciously damaging property contrary to s195(a) of the Crimes Act 1900. Each was sentenced to imprisonment for a fixed term of nine months to be served by way of periodic detention, dating from 13 February 2004 and expiring on 12 November 2004. The Court also ordered that they pay the sum of $111,000 (in addition to the $40,000 already paid) to the Sydney Opera House Trust by way of compensation. The appellants appeal from their convictions, their sentences and the compensation order.

The claim of self-defence 2 The Crown case was a simple one. It is alleged, and indeed admitted by the appellants, that on 18 March 2003 the appellants painted the words "No War" on one of the white-tiled sails of the Opera House at Bennelong Point on Sydney Harbour. There is no question but that the painting was intentional and that it constituted damage. The appellants, however, submitted that they were entitled to have the jury consider whether they acted in self-defence, either of themselves or of others, relying on s418 of the Crimes Act 1900. That section is as follows - "418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them." 3 The appellant Saunders was unrepresented at the trial, whilst the appellant Burgess was represented by Mr Doris leading Mr Leopold of counsel. Before arraignment and in the absence of the jury panel, the Crown prosecutor sought a ruling from Blackmore DCJ as to whether the foreshadowed defence was applicable, to enable him to open the Crown case appropriately to the jury and confine the evidence intended to be adduced to the real issues in the trial. Mr Doris submitted that this application was premature, arguing that the availability of the defence would depend upon the evidence ultimately adduced in the trial. The appellant Saunders, in effect, adopted Mr Doris's contentions. Mr Doris informed his Honour that he proposed to open and, in doing so, to refer to self-defence. He informed the Court as follows - "Your Honour what happened on March 18 was that Mr Burgess took part with Dr Saunders in the painting of the words "no war" on the Opera House. The matrix of evidence that I anticipate on the defence side will involve evidence from Mr Burgess to the effect that he acted in what he will characterise as extraordinary circumstances on that day, that was the day where our Prime Minister at two o'clock announced in the House that this country's armed forces were committed to the war in Iraq. He will say that his action was a desperate last resort in the defence of persons that he anticipated would be killed or maimed as a result of the action taken by our Prime Minister. He will say that he acted in order to attempt to dissuade those in authority from taking the course that they in fact took later that same day. That he had in mind a greatly increased threat to the Australian population in terms of its safety, that he had in mind what he contends for was his reasonable belief concerning the unlawful taking, destruction or damage of property. That he had in mind the prevention of criminal trespass to land or premises in Iraq, so that there is a range of considerations forming his state of mind at the time of carrying out the act constituting the offence which he wishes to commend to the Court as falling within the terms of subsection (2) of section 418. Most significant of those of course was the imminent loss of life and injury to individuals which with the benefit of 20/20 hindsight we know has in fact occurred and is continuing to occur to this day. We say that those factual propositions fall squarely within the terms of the law of New South Wales as it applies then and today thus bringing him within, subject to the other considerations that are imposed by section 418 within the ambit of that defence. We also propose to rely, and may I interpolate that the Crown has been put squarely on notice of all of this, on the terms of section 194 of the Crimes Act and we propose to contend that in all the circumstances the jury would not find his actions malicious within the meaning of section 5 of the Crimes Act. Those are the limbs of his defence and your Honour will see straight away that self defence is in the forefront." 4 The learned trial judge ruled that the question whether self-defence was available in the posited circumstances should be heard and determined before arraignment. (Although the appellants' case was that they acted in defence of others, in point of law there is no material distinction between this and self-defence. For simplicity's sake, I have usually referred throughout to self-defence rather than defence of others.) 5 It appears that Mr Doris provided his Honour with a draft of his opening address. The judge did not make a final ruling about the possible availability of self-defence but directed neither counsel nor the appellant Saunders should raise the question of self-defence by way of opening. His Honour left in abeyance a determination of the applicability of the defence until the close of the Crown case. When that point had been reached, the judge sought submissions from the appellants on the question whether or not he would permit self-defence to go to the jury. His Honour indicated that he thought it was important to deal with the matter at that stage since it could well affect the extent and character of the evidence given in the defence cases. His Honour then received evidence on the voir dire from the appellant Saunders. The appellant Burgess did not give evidence. A bundle of documents was also tendered. Blackmore DCJ ruled that the material on the voir dire did not disclose any matter that justified leaving to the jury either the issue of self-defence or whether the appellants had inflicted the damage "maliciously" within the meaning of s194 of the Crimes Act 1900. 6 Following delivery of the judgment Mr Doris sought the grant of a certificate pursuant to s5F of the Criminal Appeal Act 1912 to agitate the matters in the Court of Criminal Appeal and sought an adjournment for the purpose of permitting the appeal to be undertaken. The principal ground for this application was that, in effect, the judgment precluded the defence from leading evidence of the kind tendered on the voir dire in its case before the jury. Blackmore DCJ (rightly in my view) declined either to give a certificate or to adjourn the trial or, as was weakly suggested by Mr Doris, to discharge the jury. The appellants called no evidence and, following addresses and appropriate directions from the learned trial judge, the jury duly convicted them.

The factual basis for the defence 7 It is agreed by the parties that the factual context for determination of the question of self-defence was sufficiently set out in the learned trial judge's judgment. In that judgment his Honour said - "It is asserted by the accused that they were acting in self-defence when they painted the Opera House with the words "No War". It is said that they were possessed of a belief that the Australian Government would go to war with other countries and that as a necessary consequence people in Iraq would be killed. Further, they say that there was a reasonable possibility that, by attacking Iraq, terrorists might carry out an attack in Australia which might cause injury or death to Australians. They say that they believe that the war was unjustified and illegal." 8 By way of further detail of this summary of the defences, Blackmore DCJ quoted the statements that had been made by the appellants and tendered on the voir dire in the following terms - "[The appellant Saunders.] Noting that the invasion of Iraq was fought under the banner of war on terror I know that millions of ordinary people around the planet were doing actions to stop it with legal, intellectual and heart-felt belief that the war on terror is leading us, as a global community to social, ecological and economic disaster. Some of these people wrote letters, some marched, some sang songs, some resigned from their own countries' governments and intelligence agencies, some conducted acts of civil disobedience. I was doing my little part in that and I believed, under the circumstances, the wishes of the majority of Australians being ignored and patronised and the illegal actions of our Prime Minister that my conduct was necessary. I believe the war on Iraq was illegal because I was acting in self-defence as interpreted in the New South Wales Crimes Act 1900 section 418 by: (a) trying to prevent myself and other Australian citizens from being what I perceived to be seen as aggressors against the Islamic world and thus defend our nation from becoming the targets of international terrorism; (b) trying to prevent what I believe was the illegal invasion of Iraq and the deaths and injuries of thousands of people; (c) doing what I perceive necessary to prevent damage to the infrastructure of Iraq as the result of an illegal war being waged by my own nation that assisted in the unlawful taking of property; (d) doing what I perceive to be necessary to prevent damage to property in Australia, in particular the Opera House, through the greater likelihood of terrorist attacks as a result of our unlawful invasion of Iraq and; (e) doing what I perceive necessary to prevent a criminal trespass on the land of Iraq, that trespass being an illegal invasion of Iraq ordered by the Australian Prime Minister." "[Appellant Saunders.] I believe that section 194 and section 418 are directly relevant in this case. The defence is broadly as follows: (i) at the time of our action there was immediate risk of an invasion, certain to cause death, injury and destruction to the people of Iraq and very likely to increase the risk of terrorist attacks on the people of Australia; (ii) any such invasion would cause death, injury, deprivation of liberty, taking of, destruction and damage to, interference with and trespass upon property. A terrorist attack on the people of Australia would likely cause death, injury, destruction and damage to property. Any such invasion would be illegal under international law, immoral and contrary to the wishes of the overwhelming majority of people in Australia; (iv) manifest lies and distortions were being used to justify an invasion. It was clear the US government was already determined to invade and that the UK and Australian governments had long since decided to join a US invasion. The huge groundswell of opposition to an invasion was being belittled and ignored by the Australian government, rendering normal democratic methods of preventing this useless; (v) our actions were a desperate attempt to prevent the harm about to be done. There was never any malice against or intent to injure the Opera House Trust." 9 It is worth noting, I think, that no evidence was sought to be tendered as to the objective truth of any of the matters of fact asserted to provide the basis for the appellants' beliefs nor, for that matter, was there any evidence sought to be tendered upon which a determination of the alleged illegality of the conduct or proposed conduct of the Australian government could be made. In the end, the factual basis for the appellants' case rested almost entirely upon their assertions about their motives and intentions. It is not disputed by the Crown that, as to that matter, there was more than sufficient evidence to go to the jury. Whether the beliefs and intentions asserted by the appellants actually amounted, on analysis, to an assertion that they were acting in self-defence or defence of others is a matter that it has not been necessary for me to consider. It is certainly not unarguable that they did not. The defence of self-defence 10 The common law of self-defence was authoritatively last stated by the High Court of Australia in Zecevic v DPP (Victoria) (1987) 162 CLR 645, in which the Court reconsidered the conclusion arrived at in Viro v The Queen (1978) 141 CLR 88 that R v Howe (1958) 100 CLR 448 should be followed in preference to Palmer v The Queen [1978] AC 814. Having regard to the provisions of s418 of the Act, it is not necessary for present purposes to consider that formulation. Section 418 provides - "418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them." 11 The effect of s418 on the common law position was considered by Howie J in R v Katarzynski [2002] NSWSC 613. His Honour said at [20] - "The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP and as it was considered in Conlon (1993) 69 A Crim R 92 . The questions to be asked by the jury under s418 are: (1) is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them." 12 Howie J went on to explain that the question posed by s418(2) concerning the belief of the accused is "determined from a completely subjective point of view" whilst whether the conduct is reasonable is "an entirely objective assessment of the proportionality of the accused's response to the situation the accused subjectively believed he or she faced". It is, in the context of the present case, important to note two other issues posed by the subsection. Firstly, with respect to the matters referred to in paragraphs 418(2)(b) and (c), the prevention or termination undertaken by the accused will only be conduct in self-defence if he or she is responding to unlawful conduct of the specified kind. Whether such conduct is indeed unlawful is, obviously, not a matter of fact and, if the behaviour were lawful the defence would be excluded even if the accused thought he or she was responding to unlawful behaviour. Similarly, the behaviour specified in paragraph (d) must in law amount to criminal trespass before the defence applies and a mistaken belief by the accused about the matter will not avail. 13 It is, however, necessary to consider the effect of s422, which provides - "This Division is not excluded merely because: (a) the conduct to which the person responds is lawful, or (b) the other person carrying out the conduct to which the person responds is not criminally responsible for it." 14 This provision reflects in part the recommendation in the final report December 1992 of the Criminal Law Officers' Committee of the Standing Committee of Attorneys-General on the Model Criminal Code. That recommendation, however, is not justified by any discussion of the policy issues which the recommendation presents. Section 422 goes somewhat further than the recommendation but the reasons underlying s422 are also somewhat unclear. In Zecevic, dealing with the common law, the Court was divided on this point and it is not presently material to rehearse the arguments on each side. The majority view, that there is no necessary requirement that the attack giving rise to the need for defence should be unlawful, was that the lawfulness or unlawfulness of the attack would be relevant and possibly decisive when considering whether the fact and extent of the self-defence was reasonable. Thus, Wilson, Dawson and Toohey JJ said (162 CLR at 663, and see Deane J at 682) - "Whilst in most cases in which self-defence is raised the attack said to give rise to the need for the accused to defend himself will have been unlawful, as a matter of law there is no requirement that it should have been so…Thus, for example, self-defence is available against an attack by a person who, by reason of insanity, is incapable of forming the necessary intent to commit a crime. It is, however, only in an unusual situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in self-defence. The whole of the circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist…then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design…" 15 The statutory defence, however, is qualified in that the specific terms of paras 418(2)(b)(c) and (d) require that the conduct sought to be resisted by the use of otherwise unlawful conduct must itself be unlawful and that s422 applies only to conduct undertaken for the reason specified in para 418(2)(a).

The judgment below 16 Blackmore DCJ considered that it was an essential requirement of the notion of self-defence that there must be - "a significant correlation between the act that constitutes the offence and the threat that the accused is defending against. It must be emphasised that self defence arises in circumstances where someone is repelling an attack on his person, other persons or property. To my mind, the principal objective indicators that the evidence raises an incidence of self defence are the physical and temporal relationship between the perceived threat and the action of the accused allegedly taken in response to it. The section requires that the accused's actions be subjectively necessary to address the perceived threat. If, in reality, there was no such threat or it was so far removed in time or place from the accused such that their actions could not be said to involve any necessity to act to address the threat, then no incidence of self defence sufficient to go to the jury arises. 17 His Honour then briefly set out the cases made by the accused and said - "…[To] my mind the evidence does not support a conclusion that there existed the necessary nexus between the offence and the threat that was perceived such as to provide evidence of self defence. It lacked the necessary temporal and physical relationship that would have made the actions of the accused necessary. At best the evidence demonstrates, if is accepted, when analysed objectively, that at some time in the future some action that might be carried out by the Government of Australia might have the effect of directly or indirectly injuring some unidentifiable person in a different country. In my view that is not a basis to found a claim for self defence. … Further, the suggestion made by the accused in evidence that, if Australia made a decision to go to war, it or its citizens might suffer an attack from terrorists at some future time to my mind is even further temporally and physically removed from any perceived threat." 18 His Honour concluded - "It must be emphasised that a claim to self defence is a claim of necessity. It is a claim that it was necessary to act in the way which was otherwise illegal to avoid a perceived threat. Even allowing that the belief in the necessity to act is subjective, a court will be very conscious [sic] to ensure that there is a proper objective relationship between the perceived threat and the actions carried out by the accused before a claim to acting in self-defence is left to a jury…[In] my view the objective evidence in this case does not support a claim of self defence sufficient to go to the jury." 19 Having considered and dismissed another possible defence arising under the terms of s194 of the Act (to which I will come in due course), the learned trial judge ruled that the self-defence could not be raised by the appellants.

The appellants' case in this Court 20 The appellants submit that, they having claimed to have acted in self-defence, the questions whether it was reasonably possible that they had the belief that what they did was necessary in self-defence and whether it was a reasonable response to that belief were for the jury alone to decide as both are questions of fact. It is argued that the evidence that was excluded went to the circumstances in which the appellants found themselves and that "[other] relevant considerations such as the imminence of war and its likely consequences were fairly open to assessment by the jury on the factual issue" whether the appellants' belief was genuine and whether their response was reasonable. It is submitted that his Honour, in holding that "the evidence does not support a conclusion that that there existed the necessary nexus between the offence and the threat that was perceived such as to provide evidence of self-defence" erred in that he determined a question of fact that must have been left to the jury. 21 It is submitted, further, that the learned trial judge was wrong about the lack of the relevant nexus. It is argued that there was a close temporal connexion between painting the Opera House roof and the commencement of war, with the announcement made that very afternoon. War leads to thousands of casualties and even a hope that the protest "would foreshorten the loss of life would serve the requirements of the section". As to the "physical nexus" is contended that the mere fact that those at risk "were unidentified foreigners" (counsel's phrase) was immaterial, submitting that if, for example, "a person seized and destroyed a mobile telephone in Sydney that was about to be used to detonate a bomb in London, his defence would not be disallowed on the basis his Honour identified". It is also submitted that the question of the potential effectiveness of the appellants' protest had not been addressed and that it is notorious that "protest has been effective in influencing decisions of such poignancy as war. Individual protest cannot often claim to be seminal, rather than the process, of its nature [it] is collective and cumulative". 22 The appellants submitted further that a judgment of the kind made here - "should be noticeably the function of a jury not a judge. To assert otherwise would be to assert the primacy of the views of a judge above a jury in a case with naked political overtones, and which the government of the day, and all its individual members, has and had a manifest and deep interest in defending its decision to join the war. This, therefore, is a case which may be within the territory of the separation of powers. That is a territory where the judiciary is entitled to evolve, maintain and develop judicial policy about its role as an instrument of government."

This argument seems to suggest that cases involving public controversy should be tried differently from other cases and that, to avoid being seen as lacking independence, judges should not apply the law equally in all cases but should, in these trials, permit the court to become a forum for political debate and decision rather than for determination of the legal and factual issues presented by the law for decision. To accede to such an argument would be to abandon the proper role of the courts as impartial and disinterested tribunals administering justice according to law.

The threshold question 23 It is not controversial that, if there is evidence capable of establishing the reasonable possibility that both limbs of the test prescribed in s418 might be satisfied, namely the subjective belief of the accused about the existence of the threat and the objective reasonableness of their response, then the defence must be left to the jury to consider. The defence will then have been raised in the relevant sense. It is argued by the appellants that the defence had been raised in this case and that it was therefore an error for the trial judge to evaluate the matters relied on (or, perhaps more accurately, to be relied on) to establish the existence of the reasonable possibility that the elements were present. 24 It is obvious that, in order to confine cases to the real issues raised by the evidence, it is appropriate for a trial judge to consider whether particular issues should be left to the jury. In principle, this is unarguable. It is also correct, as the appellants submit, that the judge must not intrude into factual matters that are within the jury's province to determine. However, it is clear that the judge must be able to evaluate the evidence to some extent in order to arrive at the conclusion that there is evidence which is capable of establishing - though, of course, it might not ultimately be accepted as establishing - the elements of a defence such as self-defence. There is no doubt that this is a question of law and not of fact, even though it involves an evaluation of the evidence. The appellants argue that, once there was evidence that they had the relevant belief and evidence of the grounds for that belief, it was entirely a matter for the jury to consider whether there was a reasonable possibility that they had that belief on those grounds and that what they did was objectively a reasonable response, pointing in particular to the following passage from the judgment of the majority in Zecevic (162 CLR at 665) - "The issue of self-defence was squarely raised. Clearly there was evidence upon which the jury could conclude that the appellant believed it was necessary to do what he did in order to defend himself. There was also evidence of the grounds for that belief. Whether those grounds were reasonable were matters for the jury…The weakness in the appellant's case was the fact that he went to his own flat after the deceased threatened him and, after an interval of time had elapsed, re-emerged at the scene of the shooting. However, if the jury believed the appellant, it is not inconceivable that it might have adopted a view of the facts which would have favoured him in his defence of self-defence. The issue should have been left to the jury."

This passage is not authority, as it seems to me, for the proposition for which it is cited. It is clear that, if it were indeed "inconceivable" that the jury could have found for Zecevic , the issue should not have been left for its consideration. This is made quite clear by the immediately preceding paragraph in their Honours' judgment (in fairness, also quoted in counsel's submission), citing the point made by Gibbs J (as he then was) in R v Muratovic (1967) Qd R 15 at 20 that "…the plea of self-defence may seem to a judge to be weak and tenuous, but it is for the jury not a judge to decide upon a plea of this kind, as upon any other question of fact, provided…that there is evidence upon which a reasonable jury could decide the issue favourably to the accused." [My italics]. 25 The threshold question has also been considered in cases where the evidence suggested the possibility that the accused has acted in self-defence but, in the event, had not relied on it and it is argued on appeal that the trial judge should have raised the question with the jury to ensure a fair trial. An example is R v Marshall (unreported, NSWCCA 17 July 1990), where the appellant's case was that he was not the person who had inflicted the lethal wounds on the victim and the trial judge declined to leave self-defence to the jury, despite the request of defence counsel that he should do so as he, considering the nature of the defence, could not. Gleeson CJ (with whom the other judges on the Court agreed) analysed the evidence, including the appellant's statement from the dock, in some detail and, applying the test, "whether there was a realistic possibility that the jury might reach a view of the facts…which would leave open an arguable case of self-defence", concluded that he was "unable to construct…a realistic hypothesis concerning the facts proved in evidence, and the available inferences which would give rise to the possibility of self-defence as a serious issue to be considered". 26 The appellants argue that because the question whether their conduct was a reasonable response to the circumstances as they perceived them to be was "not a matter for…evidence…[but] a matter for judgment", it should have been left for the jury to consider. They submitted - "In removing this question from the jury's consideration his Honour effectively determined that no reasonable jury could reasonably conclude that the appellant's actions were a reasonable response to the prospect of the slaughter of thousands of individuals and other risks that the decision protested [ sic , semble connoted] and, on the evidence invoking every part of s418(2)…"

I cannot see that this distinction is significant. If the judge came to the view that no reasonable jury could find that there was a reasonable possibility that the appellants' action was a reasonable response in the circumstances as they perceived them to be, then it follows that the defence ought not to have been left to the jury, whatever the appellants thought about the reasonableness of their conduct. To take an extreme example, to shoot a child who was throwing snowballs could never be a reasonable response and self-defence would never get to the jury in such a case, although the proportionality of the response is certainly a matter of judgment. 27 I have already mentioned that the lawfulness of the actions to which the accused responds is a significant, and usually decisive, element of the reasonableness of his or her claimed self-defence. It is obvious that this is a matter which the trial judge is well able to determine. Other matters requiring consideration under this head are the imminence and seriousness of the threat. The imminence that is relevant is not, as was submitted by the appellants, the imminence of the Government's announcement but the imminence of the injury sought to be prevented. Gleeson CJ, in Rogers (1996) 86 A Crim R 542 at 545, said that "the imminence and seriousness of the threat to which the accused was supposedly responding are important, and often critical, factual considerations going to the accused's supposed belief and the reasonableness of his belief". The Chief Justice also observed, in relation to the defence of necessity, that it was a corollary - "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. That is why, historically, it has been regarded as important to seek to limit the scope of the defence [of self-defence] by referring to requirements such as urgency and immediacy…[although] it is now more appropriate to treat these '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." 28 In R v PRFN (unreported, NSWCCA 21 June 2000) the appellant argued that he believed that he and others were under continuous threat of being sexually assaulted by the deceased (who had anally raped him some years previously but who lived some distance from the accused) and was acting in self-defence when he killed him pursuant to a careful plan to do so. The trial judge refused to leave self-defence to the jury, in substance for the reason that the requirement that the threat should be imminent could not be satisfied in the circumstances, even though it was not a threshold test as distinct from being an important factual consideration relevant to whether, as a realistic hypothesis, the appellant could have believed on reasonable grounds that it was necessary to kill the deceased. Dismissing the appeal, Giles JA (with whom the other members of the Court agreed) said - "…[Whatever] the appellant's apprehension of further harm to himself or others, the appellant had last seen the deceased early in October 1997 when he went to the deceased's property ostensibly for hunting [returning some three weeks later to kill him], …there was nothing beyond a generalized apprehension. While the appellant may have been, in his own eyes, protecting himself and others from perceived future harm, I do not think the matters upon which he relied in the appeal could have supported a reasonable belief that what he did was defending himself and others. The appellant was not being attacked or anything like it and, to return to R v Rogers , the critical element of imminence of a threat was lacking." 29 Leaving aside the particular significance of imminence in the present context, this decision clearly shows that the trial judge has the power, indeed, the responsibility, to remove self-defence from the jury's consideration if his or her judgment of the facts is that it is not capable of giving rise to the objective requirement of the defence, despite the accused's belief that his or her actions were justified. Although this decision concerned the common law and not the provisions of s418, it applies equally, as it seems to me, to the objective requirements of subs418(2). 30 The appellants rely on the decision of the Supreme Court of Canada in R v Cinous [2002] 2 SCR 3, 2002 SCC 29, in which the Court considered the application of what is known in Canadian criminal jurisprudence of the "air of reality" test. It does not seem to me that this test, as articulated in Cinous, is significantly different from the test applicable in Australia. Thus, McClachlin CJ, speaking for the majority, said - "[83]…Before putting a defence to a jury, it is the trial judge's duty to ask not just whether there is evidence in some general sense, but whether there is evidence that is reasonably capable of supporting an acquittal. This requires an assessment of whether the evidence relied upon is reasonable capable of supporting the inferences required for the defence to succeed." 31 In Packett v The Queen (1937) 58 CLR 191, the trial judge instructed the jury that neither of the defences of provocation or self-defence were available, as the evidence stood, to the appellant. Dixon J, as he then was, said (at 216ff) - "…Unfortunately for the prisoner, the facts which he sets up do not disclose an answer good in law to the charge of murder or a ground good in law for reducing what otherwise would be murder to manslaughter. In effect I have already said that self-defence cannot be made out. For the law does not allow a justification for causing death or grievous bodily harm to an assailant unless for the violence with which the latter pursues his purpose the person causing death or grievous bodily harm acts under the reasonable apprehension that his own death will be caused and unless he believes on reasonable grounds that he cannot otherwise preserve himself therefrom (Tasmanian Criminal Code , sec 46). By no interpretation of the prisoner's narrative and by no inference from the circumstances can this necessarily high standard of justification be satisfied….The reason why, in my opinion, there is not enough in the prisoner's narrative to amount to provocation is that there was no wrongful act or insult which could be found to be of such a nature as to deprive an ordinary person of the power of self-control. It may be conceded in the prisoner's favour that his account of how the two deceased men behaved might have received at the hands of the jury an interpretation amounting to the wrongful act of detaining him under tacit or implied threat of force. Perhaps it may also be conceded that a jury might infer that he acted under the influence of emotions of fear and resentment amounting in his case to a loss of self-control and that he did so on the sudden. But the reason why the question whether any matter alleged is capable of constituting provocation is a matter of law lies in the main in the necessity of applying an overriding or controlling standard for the mitigation of the law. At common law the test of provocation is not whether the occurrence is sufficient to deprive the particular individual in question of his self-control, having regard to his nature and idiosyncrasies, but whether it would deprive a reasonable man in his situation of self control…This standard is embodied in the language of the code and the court is entrusted with the duty of ruling whether the matter relied on is capable of depriving an ordinary man of his self control. It is impossible to hold that, upon any interpretation of the prisoner's story which a jury might reasonably adopt, such a situation could be considered to have arisen as was capable of depriving an ordinary man of his power of self-control..."

It seems to me that, in substance, the same analysis was undertaken by Blackmore DCJ in his consideration of whether the appellants' evidence that sought to raise self-defence was relevant in the sense that it was capable of justifying a verdict in their favour on that ground. 32 The true burden of the appellants' argument is not so much that they acted in self-defence but that their conduct was a reasonable protest against the Australian Government's imminent decision to militarily intervene in Iraq and that a jury might so hold. The question posed by s418 is not whether it was reasonable for the appellants to protest against the Government's action or whether that protest was reasonable: it is whether it was a reasonable response by way of self-defence. It is for this reason, as it seems to me, that the learned trial judge was correct in considering the relationship between what the appellants did and the prospect and potential consequences of military action and whether their conduct could reasonably be characterised, objectively speaking, as defending others from attack.

Conclusion 33 In my view, the evidence was incapable of showing such a relationship between the conduct of the Australian Government and the possibility of casualties on the one hand and the conduct of the appellants on the other as to permit the possibility of a reasonable conclusion that what the appellants did was a reasonable response by way of defence of the potential victims of military action by the Government. A significant element of this determination is the undoubted lawfulness of the Government's decision under the domestic law applied in the courts of this State: cf Jones and Milling & Ors v Gloucestershire Crown Prosecution Service [2004] EWCA Crim 1981. This is not one of those very unusual cases where this consideration should not be decisive. But, even if this consideration were not decisive, the evidence was incapable of justifying a decision favourable to the appellants. Aside from the general risk that military action will result in casualties, there was no evidence of, or that the appellants were aware of, any particular operations proposed to be undertaken by Australian personnel that might, unlawfully (in the relevant sense) or otherwise have caused injuries to persons or property, nor when and in what circumstances such activities might be undertaken. It is not surprising, perhaps, that the appellants relied on what was, in substance, a general assertion that such casualties were an inevitable result of military action and that that, in dealing with the issue of the imminence of danger, the appellants pointed only to the imminence of the Government announcement. It seems to me to be clear to the point of demonstration that there was no proper evidentiary basis upon which a jury might conclude that what the appellants did was an act of reasonable self-defence: defence against what? in respect of violence threatened when? to whom? and in what circumstances? must have necessarily been questions to which the answers were almost entirely speculative. The characterisation of this problem by Blackmore DCJ as one of "nexus", far from being in error, strikes me as entirely appropriate and his Honour's conclusion inevitable. The same reasoning applies to the claim that the appellants were acting to defend unknown property that might be damaged by unlawful actions by terrorists attacking Australia by way of reprisal. In this context it is worth pointing out that the so-called defence was against acts to be committed by persons over whom the Government had no control, indeed, which one must expect the Government would attempt to prevent from acting in this way. 34 The appellants' submission that protest sometimes influences government is an historical observation that bears no real relationship to the requirements of s418(2). The appellants' argument that what they did was proportionate to the injury they were attempting to prevent, therefore, should be seen as comparing, on the one hand, significant damage to the property of a third party having nothing whatever to do with either the decision of the Government or with any of those affected or potentially affected by its decisions, with a protest, on the other hand, which could have no effect at all on the conduct about which they were protesting or protect in the slightest degree any of the persons in whose defence they asserted they were acting. So understood, I am unable to see how any jury could regard what the appellants did as reasonably proportionate to the circumstances as they perceived them to be as an act of self-defence. The comparison relied on by the appellants that rests on the possibility that thousands of persons were placed at risk of injury or death by the Government's decision (or, indeed, any Government decision in any arena of public policy that the appellants considered could place persons, wherever they might be, at risk) could logically justify, if correct, acts of even more extreme destruction of property and even injury or death in order to induce a change of policy. It is this logical consequence that demonstrates the inaptness of the analysis that underlies it. 35 For these reasons, I would uphold the trial judge's decision to not to permit self-defence to go to the jury.

The requirement that the damage should be done maliciously 36 The appellants relied on the requirement of s194(3) that "an act done by a person under a reasonable belief that the person had a right to do the act shall be taken not to have been done maliciously". They argued that their belief that their conduct amounted to self defence was reasonable and, hence that they had not acted maliciously for the purposes of s195(a). At the trial this argument relied on s418 and it was initially conceded in this Court that, if the learned trial judge correctly refused to allow self-defence to go to the jury, no independent basis for contesting the convictions was provided by s194(3). 37 The appellants seek to withdraw this concession to argue that the material "right" might also arise by virtue of the operation and effect of the International Criminal Court Act 2002. So characterised, the argument must fail. A claim of right within s194(3) must be a "supposition by an accused that he has particular rights in respect of the subject property, either as a private individual, or as a member of the public or a class of the public which, if he were correct in that supposition, would entitle him to deal with the subject property in the manner in which he dealt with it": R v Phillips and Pringle (1973) 1 NSWLR 275 per Jacobs P at 288. 38 The appellants also argue (for the first time) that the materials excluded from evidence by Blackmore DCJ disclosed that crimes within the jurisdiction of the International Criminal Court, are "wide in scope and embrace conduct and outcomes which were referred to in the materials excluded". They seek to argue that, at common law, the citizen may use reasonable force to prevent crime and that, as I understand the submission, this comprehends such conduct as the Rome Statute of the International Criminal Court characterises as crimes. 39 Since the appellants, it is submitted, claimed that their conduct was directed to preventing the Australian Government from committing such crimes, they were not acting "maliciously" as that term is used in s195 of the Crimes Act 1900. The submissions of the appellants do not explain how the material that was sought to be tendered raises the possibility that they apprehended that the Australian Government might act in ways that could excite the jurisdiction of the International Criminal Court, let alone that such an apprehension was reasonable or that the risk was such that their conduct was a reasonable response to it. I do not think that this Court should troll through that voluminous material in an attempt to identify how such a case might be put. Mr Doris conceded in argument in this Court - though, of course, only on behalf of Mr Burgess - that there is nothing in the material tendered on the voir dire which suggested the commission of any relevant offences. His submission amounted to little more than that such offences are to be expected from the mere going to war. It seems to me obvious that this cannot possibly be sufficient, even accepting that crimes under the Rome Statute are relevant. 40 At all events, the Trustees of the Opera House could not possibly be implicated in the commission of any offences of any kind and an exhortation to the Australian Government that it should not go to war is not an act in the prevention of crime that the law contemplates as justified by the rule to which I have referred. The matter can be easily tested. Could the appellants argue that they were justifiably acting to prevent crime by painting the slogan, "Mr Smith, do not assault your wife and children" on the Opera House roof, even though they believed on reasonable grounds that this was precisely what Mr Smith had in mind? It is notorious that men do indeed commit such assaults, which frequently result in serious injuries and even death, somewhere in Australia on every day of the week. Of course, such crimes are very grave and, of course, citizens should do everything reasonably in their power to prevent them. But I am unable to see how painting the exhortation which I have hypothesised could possibly qualify as a reasonable act to prevent crime. The slogan actually used is in no different position, even accepting for the sake of argument that the appellants believed on reasonable grounds that the Government might be contemplating a crime within the meaning of the Statute. 41 In my opinion, there is no merit in the argument that the appellants could or should have been permitted to tender to the jury the material said to raise the possibility that they believed that they were acting to prevent a possible or likely crime in order to raise the question whether they had acted maliciously within the meaning of the section. That material was plainly irrelevant and rightly excluded.

Sentence 42 The appellants argue that Blackmore DCJ erred in failing to set a non-parole period, simply sentencing each of the appellants to a nine month term of imprisonment to be served by way of periodic detention. The offences occurred on 18 March 2003 and, accordingly, the sentencing procedure was governed by the requirement in s44(1) of the Crimes (Sentencing Procedure) Act 1999, as it applied to offences committed after 1 February 2003, that the court must first set the non-parole period and then the balance of the term, if any. 43 Blackmore DCJ, after a comprehensive discussion of the objective and subjective features of the appellants' cases, said - "Having regard to section 21A of the Crimes (Sentencing Procedure) Act and the fact[or]s as outlined therein, I conclude that a period of full time custody is not warranted in the circumstances of this case. On the other hand, the offence was serious and a sentence that will provide adequate general deterrence is required. In my view, such a sentence is one of periodic detention… … I have considered whether special circumstances apply to this case and whether there ought to be a parole period fixed. I note that in that regard that the Probation and Parole reports for both offenders indicate that there is no likely benefit to be gained by these offenders being supervised by that Service. I do not propose to fix a parole period in the circumstances." 44 It is true that, strictly speaking, the question of special circumstances only arises in the event that a period on parole is to be imposed, since only then is it necessary to consider whether the statutory calculus should apply to adjust the relationship between the non-parole period and the balance of the term. However, I think that his Honour was entitled to consider - indeed, was bound to consider - what might be the appropriate range of the balance of the term in the particular cases, and thus the likely effect of any special circumstances that might be (and, in these cases, probably were) present, as one of the matters that was relevant to his assessment of the appropriateness of imposing any further term as part of the sentence. In the event, his Honour concluded that the non-parole period he had set was sufficient and that no good purpose would be served by imposing a period of parole. In the result, his Honour imposed fixed terms. 45 The view of Blackmore DCJ that a period on parole would serve no useful purpose (in my respectful opinion) was not only open but plainly correct. His Honour considered that a nine-month fixed term was an appropriate and sufficient sentence for each appellant, having regard to the objective and subjective circumstances. The effect of this decision was that it was unnecessary to impose any further term. Indeed, to have done so would have been, ex hypothesi, excessive. In my view, although the learned judge's reasoning is somewhat awkwardly expressed, having regard to the distinct issues dealt with in ss44 and 45 of the Act, his Honour complied sufficiently with the requirement of s45 that reasons should be given for declining to set a non-parole period. I do not agree that the potential period of a balance of a term of a sentence is irrelevant to considering whether or not to set a non-parole period. The submission that his Honour seemed to confuse and combine the relevant questions posed by these sections is, on analysis, without merit. The assumption in the submissions made by the appellants, as it seems to me, is that Blackmore DCJ would have given a lower fixed term had he decided first that no period on parole was necessary. A careful reading of his Honour's reasons shows this assumption to be mistaken. 46 Of course, that leaves for consideration whether the fixed term sentence of nine months to be served by way of periodic detention was excessive. The appellants argue, in substance, that Blackmore DCJ gave too much weight to the requirements of specific and general deterrence and too little to their worthy motivation for the offence and their good character. It is submitted that a proper consideration of the requirement of s5 of the Act that an offender must not be sentenced to imprisonment unless, having considered all other alternatives, no other penalty is appropriate, should have led to the conclusion that a non-custodial sentence could appropriately have been imposed. Section 5 is not mentioned by his Honour but I have no doubt that he considered it. It was at the forefront of the argument addressed to him by Mr Doris on his client's behalf that the application of s5 would lead to the conclusion that a non-custodial sentence was appropriate. 47 No point is taken that the sentencing judge did not deal fairly and properly with both the objective and subjective features of the cases. It is, rather, argued that his Honour placed too much emphasis on deterrence and gave too little weight to the appellants' motives, their good character and the substantial amount of compensation that they were obliged to pay. Enough has already been said about the nature of the offence and the reasons said to justify or, at least, excuse it. I have no doubt that this was an offence that required a sentence of imprisonment. Even if I were not of that view, such a sentence was clearly within the proper exercise of the sentencing judge's discretion. Not only was serious damage caused but the continuing assertion of the appellants, in effect, that they were justified in committing the offence necessarily required that both personal and general deterrence be given real significance. That is not to say that they should have been more harshly punished than their true culpability deserved but I consider that the sentence that was imposed on them was not distorted in this way. 48 For reasons which are not presently in issue, Blackmore DCJ ordered that the appellants should pay compensation of $111,000. They had already paid $40,000. It appeared that Mr Burgess did not have any independent means to pay further compensation but that Dr Saunders was in employment and able to make regular payments. In addition, a fund has been established with contributions from supporters out of which, from time to time, compensation will be paid. It is submitted that that his Honour erred in failing to take into account evidence that had been tendered on sentence which showed, in effect, that the Opera House Trust had undertaken the restoration work in an unnecessarily complicated and expensive way. Mr Doris, for Mr Burgess, submitted below that the cost of the abseilers who undertook the work on the roof was inflated by a head contractor whose margin doubled or almost doubled the charge of the sub-contractor and that his client (and, by implication, Dr Saunders) should not be obliged to pay for this "profiteering" under a compensation order. This submission is naïve, as was explained by the owner of the relevant business. The cost of the contractor included, of course, much more than merely the accounts paid to the sub-contractor. The evidence was that the charge was standard in the industry. It is clear that the evidence does not support the submission of "profiteering". Moreover, the question concerned the conduct of the Trust. There was no evidence at all that the Trust did not conduct itself with complete propriety. It is submitted that it failed to mitigate its loss. There was no evidentiary basis for such a submission. Accordingly, this attack on the compensation order must fail. 49 The appellants also submitted that Blackmore DCJ erred in failing to give sufficient weight to the fact that significant reparation had already been made and that the compensation order would eventually lead to a correction of the harm done to the Trust by the appellants' conduct. It is, I think, undoubted that compensation that has been paid by an offender is often cogent evidence of remorse and, where it is accompanied by actual hardship in the sense of a real cost, is appropriately reflected in some amelioration of penalty, to a greater or lesser extent. In this case it appears that Dr Saunders has undertaken the greater burden of payment that has not been covered by contributions from supporters, since Mr Burgess has, it appears, little means. Of course, the compensation payments cannot be regarded, in the somewhat unusual circumstances of this case, as evidence of remorse. His Honour said that he took into account, as a favourable subjective feature of both cases, the payment and offer of compensation. Having regard to the sentences imposed, I would not conclude that his Honour erred by giving this matter less significance than it deserved.

Proposed orders 50 I propose that the appeals against conviction should be dismissed and that leave to appeal against the sentences should be granted but that the appeals should be dismissed. 51 HISLOP J: I agree with Adams J. 52 NEWMAN AJ: I agree with both the reasons given and the orders proposed by Adams J. 53 However, there is one observation which I wish to make. Essentially, the appellants contended that they were entitled to raise the concept of self defence (or as they put it "the defence of others") in a situation where the crime with which they were charged involved the vandalising of the property of an entity which had no connection whatsoever with the entity against whom they claimed their actions were taken by way of defence. As is made clear by the authorities and legislation cited by Adams J in his judgment, the concept of self defence only arises where the actions of the accused by way of self defence are directly taken against the person threatening the accused or another's being or property. If it were necessary to delve into the reasons of public policy why this is so, the simple reason why it is, is that it would be outrageous for the situation to be otherwise. Attacks in one form or another against innocent people could be justified by the attacker by raising self defence against an unrelated third party - as is claimed here. The common law has never countenanced such a concept, nor would, I believe, the community ever accept such a proposition as representing a just law. 54 As I have said, with this one observation I agree entirely with the reasons given and the orders proposed by Adams J.

16/03/2005 - Corrected typo appearing in headnote for case file number - Paragraph(s) n/a

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