Gordon Robert Henshaw v Patricia Ellen Mark, Lynda Stoner, Margaret Mary Setter and Mark Anthony Pearson [1997] ACTSC 64 (5 September 1997)

SUPREME COURT OF THE ACT

GORDON ROBERT HENSHAW v. PATRICIA ELLEN MARK, LYNDA STONER, MARGARET MARY
SETTER and MARK ANTHONY PEARSON
Nos. SCA16, SCA20, SCA21 and SCA22 of
1997
Number of pages - 9
Summary Offences

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MILES CJ

CATCHWORDS

Summary Offences - trespass on premises in a Territory without reasonable excuse - Public Order (Protection of Persons and Property) Act 1971 (Cth), sub-s.11(1) - defendants entered battery hen farm at night in order to protest at lack of official action against occupier for breaches of Animal Welfare Act 1992 - onus of proving absence of reasonable excuse lies on prosecution - relevance of defendants' beliefs - true question is whether trespass is justified not whether beliefs are justified - whether occupier guilty of offences under Animal Welfare Act irrelevant - objective test whether absence of reasonable excuse - statutory interpretation - no requirement that trespass be violent or threat to person's property or public order - absence of reasonable excuse for trespass proved.

Magistrates Court Act 1930, para.219B(1)(a) and s.219C

Public Order (Protection of Persons and Property) Act 1971 (Cth)

Animal Welfare Act 1992

Crimes Act 1914 (Cth), s.15D

Crimes Act 1900, para.556A(1)(b)

Taikato v. The Queen [1996] HCA 28; (1996) 186 CLR 454

Press v. Tuckwell (1968) 69 SR (NSW) 17

Myers v. Claudianos [1990] ACTSC 12; (1990) 100 FLR 362

HEARING

CANBERRA, 24-25 June 1997 (hearing), 5 September 1997 (decision)

5:9:1997

Counsel for the appellant: Mr. T. Golding

Solicitors for the appellant: ACT Director of Public Prosecutions

Counsel for the first respondent: Ms. S. Leis

Solicitors for the first respondent: Newcastle Legal Centre

Counsel for the second, third and Ms. J. Baly

fourth respondents:

Solicitors for the second, third and Newcastle Legal Centre

fourth respondents:

ORDER

THE COURT ORDERS THAT:

1. The order nisi of 21 March 1997 be made absolute.

2. The Magistrate's orders of 18 February 1997 dismissing the informations be set aside and, the Court being satisfied that the charges are proved, in lieu thereof makes an order under sub-s.556A(1) of the Crimes Act 1900 that, having regard to sub-paragraphs (i),(ii) and (iii) of para.556A(1)(b), it is of the opinion that it is inexpedient to inflict any punishment and dismisses the charges.

3. Costs of and incidental to the appeal be paid by the appellant as agreed or taxed.

DECISION

MILES CJ

Nature of case

This is an appeal by way of application to make absolute an order nisi for review of a decision of the Magistrates Court pursuant to para.219B(1)(a) and s.219C of the Magistrates Court Act 1930 (the Magistrates Court Act).

The decision subject to the application is the dismissal of informations laid against each of the respondents (defendants) by the appellant (informant) for an offence against sub-s.11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (the Public Order Act). The decision was made on 18 February 1997. Each information alleged that the defendant in the Australian Capital Territory on 20 October 1995, without reasonable excuse, trespassed on the premises of Parkwood Bartter Enterprises, Parkwood Eggs Pty Limited (Parkwood Eggs).

The terms of s.11 (as they were on 20 October 1995) are as follows:

"Additional offences on premises in a Territory

11. (1) A person who, without reasonable excuse, trespasses on premises in a Territory is guilty of an offence, punishable on conviction by a fine not exceeding One hundred dollars or imprisonment for a term not exceeding one month, or both.

(2) A person who:

(a) engages in unreasonable obstruction in relation to the passage of persons or vehicles into, out of, or on premises in a Territory, or otherwise in relation to the use of premises in a Territory;

(b) while trespassing on premises in a Territory, behaves in an offensive or disorderly manner; or

(c) being in or on premises in a Territory, refuses or neglects, without reasonable excuse to leave those premises on being directed to do so by the occupier or a person acting with the authority of the occupier;

is guilty of an offence, punishable on conviction by a fine not exceeding Two hundred and fifty dollars or imprisonment for a term not exceeding three months, or both.

(3) Notwithstanding section 23, the consent of the Director of Public Prosecutions, or of a person, or of a person included in a class of persons, authorized by the Director of Public Prosecutions for the purposes of subsection (2) of that section, is not required for the institution of proceedings for the prosecution of an offence against this section.

(3A) This section is not intended to exclude or limit the concurrent operation of any law of the Australian Capital Territory.

(4) In this section, "premises" does not include Commonwealth premises."

A number of grounds were furnished in the order nisi for review made by Gallop J. on 21 March 1997. The grounds are repetitious. They have a common theme, namely that the Magistrate erred in law in deciding what facts were relevant to the offence charged and further erred in the application to the facts as found of the legal test as to what might constitute reasonable excuse.

The Magistrate's decision: defendants had reasonable excuse for trespass

Some of the essential facts which the Magistrate found to be established are as follows. Parkwood Eggs produces eggs for sale at premises at Belconnen. It is a large scale operation. The eggs are produced by the battery hen method. There were at the time some 260,000 hens contained in seven sheds on the premises. There were four hens to a small cage. The defendants held a deeply seated belief that the battery method was cruel to the hens. They also believed that the law under the Animal Welfare Act 1992 (the Animal Welfare Act) was not being enforced against Parkwood Eggs as a matter of deliberate government or departmental policy, although they had no knowledge and little understanding of what was occurring on the Parkwood Eggs premises. In the early hours of the morning they and about ten other people entered the premises without the permission of Parkwood Eggs and without seeking such permission. What happened then was described by the Magistrate as follows:

"Upon arrival, they gained entry to shed No. 5. They then set about looking at the hens, locating sick and distressed hens, caring for them and recording what was seen in that shed by video and by photographs. Some members extricated dead and dying and sick hens from the cages and took them to a vet. After some hours of this, they settled into the publicity side of their business. One defendant called the police, other demonstrators alerted the media to what was happening. Before the police arrived, the demonstrators chained themselves to the cages. I gather that this and what followed when the police arrived was something of a ritual. When the police arrived, they cut the chains, and ordered everyone to leave. The four defendants refused to leave, on the grounds that the police should first investigate their complaints against Parkwood Eggs. Sgt. Crafter said words to the effect that the business complied with regulations. Whereupon the defendants refused to leave and were arrested. The other 10 protesters left without fuss. Once arrested, the defendants left without fuss."

After making further findings to the effect that the defendants only did what the employees of Parkwood Eggs should or would have done, the Magistrate remarked:

"In short, their trespass caused no harm to anyone, no drop in production, no interference with work, no damage, and they did some positive good by helping obviously sick hens."

The Magistrate then went on to consider a number of other issues which had been the subject of evidence and to make findings and to draw conclusions on those issues. In particular the Magistrate was concerned to determine not only the state of the defendants' beliefs and intentions but also the validity of their beliefs and the moral implications of their intentions.

There was a considerable body of evidence about what the defendants had done to get official action to restrict or stop battery hen production. Although the Magistrate stated that it was unnecessary to make any positive finding whether battery hen farming is cruel, his statement that it was impossible "not to be over-whelmed by the evidence" which was "all one way" was sufficient to convince him that battery hen farming is a "barbaric practice". More to the point, the Magistrate concluded that the defendants (none of whom reside in the ACT or anywhere near it) acted in frustration at the lack of official action generally in Australia over battery hen production. With regard to the defendant Patricia Mark, he said that "it is difficult to see what more she could have done without taking action similar to that which she took on 20 October 1995". The Magistrate then concluded that the battery hen production method was inherently cruel and that Parkwood Eggs was "no exception".

The Magistrate also considered the evidence of several expert witnesses who were called to state their opinion on various matters. They were mostly veterinary surgeons. There was also tendered and admitted into evidence documentary material from various sources such as British Poultry Science and the Veterinary Record. Much of the evidence was concerned with whether Parkwood Eggs was in breach of various sections of the Animal Welfare Act. What the Magistrate was expected to make of all this, and what he did make of it, is not clear. It does appear, however, that from it he concluded that battery hen farming is a breach of the Code of Practice established under the Animal Welfare Act. It appears further that it was on that material that he went on to comment that "the excuse must be judged on what they knew or believed prior to their trespass, but the reasonableness of it can gain some strength by the fact that they were proved right", and that "if the above does not constitute a `reasonable excuse' for a mild trespass in order to make a point, then I do not know what would".

It is not clear how the case for the informant was put or responded to in relation to these issues, but the Magistrate commented:

"It seems ironic that the prosecution can argue that cruelty may be excused on grounds of profit, but that the defendants' actions to draw attention to that cruelty cannot excuse their harmless trespass."

An examination of the appeal papers does not reveal any argument put by the prosecution that cruelty is to be excused on the ground of profit. It is hard to see how such an argument could have anything to do with the issues before the Magistrate and Mr. Golding for the informant on the appeal certainly put no such argument.

In applying the law to the facts as found, the Magistrate stated as follows:

"The purposes of s.11(1) of the Public Order (Protection of Persons and Property) Act are to preserve public order and to protect property and to protect persons in a demonstration situation. Here there was undoubtedly a protest or demonstration, but it proved no threat to persons, property nor to public order.

...

Section 11(1) is aimed more at violent demonstrations (Aidex, Iranian Embassy, Parliament House Riots and the like) or more determined sit-ins of the late Ray O'Shaughnessey type, calculated to disrupt business, rather than simply make a point, and then leave. This distinction, I think, is the key to satisfying the worry expressed by the majority of the High Court that: 'a criminal law should operate uniformly in circumstances which are not materially different' (Taikato [1996] HCA 28; 139 ALR 386 at 394). The law which it is said the defendants have breached was not aimed at the type of demonstration they staged."

The Magistrate sought to apply what he called the balancing exercise referred to in Taikato v. The Queen [1996] HCA 28; (1996) 186 CLR 454 by weighing up the issues in the following way:

"On one side of the scales, one would have to place the deliberate proscription against trespassing without reasonable excuse, the fact that it was a protest or demonstration, the need to protect persons and property, the actions of the defendant(s), the alternatives available to protest, demonstrate or otherwise make a point without trespassing, whether the property is owned publicly or privately, any harm done, any obstruction caused, an interruption to the lawful occupation of others. On the other side of the scale, one considers the excuse proffered, already discussed. Salient features of the defendant's occupation of Parkwood Eggs' premises are that it was peaceful, non-violent, no damage caused, and no, or minimal disruption to the business. It was technical 'sit-in' of a very transient nature."

Having weighed the issues in the way described, the Magistrate found that the scales came down in favour of the defendants. Accordingly he dismissed the informations and discharged the defendants.

Onus

In his reasons, the Magistrate appears to have decided the case on the basis that sub-s.11(1) casts an onus on the prosecution to exclude reasonable excuse on the part of a defendant. Mr. Golding for the informant on the appeal submitted that the Magistrate was incorrect in deciding the case on the basis that the onus lay on the prosecution. Insofar as the Magistrate expressed himself in the alternative that he would be satisfied by proof by the defendants on the balance of probabilities if that were the true test, error of this nature would not of itself justify this Court interfering with the Magistrate's decision. Nevertheless, this is a sufficiently important aspect of the appeal for the Court to state that it is clear that sub-s.11(1) does not cast an onus on the defendant. Absence of reasonable excuse is an element of the offence established by the section and the prosecution must prove that element beyond reasonable doubt. The section does not create a general offence of trespass on premises in a Territory to which entry with reasonable excuse is an exception.

As all counsel were at pains to point out, trespass is not a criminal offence at common law and if there were any doubt about the plain meaning of the words then the doubt would be resolved in favour of the individual: Press v. Tuckwell (1968) 69 SR (NSW) 17. But there is no ambiguity and I do not think that the Second Reading Speech of the Minister is of any material assistance. The meaning of the sub-section is as plain as a law making it an offence to travel on a train without a ticket. In such a case the prosecution must prove absence of a ticket. In the present case the prosecution must prove absence of reasonable excuse. The Magistrate found that the prosecution failed in that regard.

Mr. Golding relied upon an alternative case that the provisions of s.15D of the Crimes Act 1914 (Cth) cast an onus on the defendant to the charges under consideration. That section provides:

"Burden of proof of lawful authority

15D. Where under any law of the Commonwealth any act, if done without lawful authority, or without lawful authority or excuse, or without permission, is an offence against that law, the burden of proving that the act was done with lawful authority, or with lawful authority or excuse, or with permission (as the case may be), shall be on the person accused."

Nowhere in s.15D, however, does the term "reasonable excuse" appear. It is well established that "reasonable excuse" is not identical in meaning with "lawful purpose" and encompasses a wider range of factors than the latter term: Taikato at 464.

Effecting as it does a substantial reduction of the rights of an accused person when charged with a criminal offence, s.15D should not be read to include anything not clearly within its range. I reject the submission that it casts an onus on the defendant in relation to proof of matters that may be regarded as analogous to or in the nature of lawful authority or excuse.

Absence of reasonable excuse: the legal test

The case for the informant on the appeal stressed the failure of the Magistrate to recognize that the right of an occupier to be free of interference except such as may be committed lawfully, is fundamental to the rule of law and that failure allowed the Magistrate to stray into irrelevant areas of factual determination such as the validity and justification of the defendants' beliefs. It was submitted that inquiry into such matters was not something that sub-s.11(1) required or envisaged and it was suggested that it was that inquiry which led the Magistrate to apply the wrong legal test to the facts as found.

Ms. Baly and Ms. Leis who appeared for the defendants on the appeal, did not seek to support the Magistrate's decision on the precise grounds enunciated by the Magistrate that sub-s.11(1) is restricted to trespass of a violent nature. That view of sub-s.11(1) is, with respect, clearly wrong. Nor did counsel on the appeal seek to justify the state of their clients' belief as to the cruelty of battery hen farming. They conceded that the inquiry into that matter was relevant, if at all, only insofar as it supported the genuineness of the defendants' beliefs. On the appeal it was submitted that the evidence led to the conclusion, consistent with the Magistrate's findings on the facts, that the defendants entered the premises in the genuine belief that Parkwood Eggs was engaged in cruel practices contrary to the Animal Welfare Act and in the genuine belief that law enforcement authorities had failed to discharge their responsibility with regard to that transgression of the law. In the best traditions of the profession, Ms. Baly and Ms. Leis submitted that their clients were entitled to make robust criticism of the Attorney-General, "Animal Welfare" (apparently a department of the ACT Government), the press and the Australian Federal Police, all of whom were considered by the defendants to have failed to discharge their responsibilities to the community to enforce the law against Parkwood Eggs. The Magistrate in his decisions found as a fact that the point of the demonstration was "to have one proper go at making the point that the law ought not tolerate battery hens" and he accepted as correct what he saw was the argument that, after some years of unsuccessful engagement in more traditional lobbying tactics, "some mildly unlawful attention-grabbing behaviour is excusable".

The Magistrate also expressly stated that his interpretation of sub-s.11(1), which excluded trespassing which was made "simply in order to make a point and then leave", was the key to satisfying the worry expressed by the High Court in Taikato with regard to uniform operation of the law. It is necessary then to further consider that decision.

Taikato was a case which involved consideration of whether the appellant, who was carrying a can of aerosol irritant spray in case of physical attack, did so both for a lawful purpose and with reasonable excuse in accordance with the relevant legislation. The burden of proof of reasonable excuse lay upon the appellant according to the terms of that legislation. Reasonable excuse was not relied upon by counsel for the appellant, but there is an authoritative discussion of that term in the majority judgment of Brennan CJ, Toohey, McHugh and Gummow JJ. It was pointed out at 464 that decisions relating to reasonable excuse as expressed in one statute are of no guidance in relation to other statutes because what is a reasonable excuse depends not only in the circumstances of the individual case but also on the purpose of the provision to which the defence of reasonable excuse is an exception. Their Honours commented that, bearing in mind the general purpose of the section in question, (prohibiting the carrying in a public place of dangerous items not as dangerous as guns) prosecution for its breach, the absence of a defence of reasonable excuse or lawful purpose would be intolerable in a free society. At 465 the joint judgment continues:

"If the rule of law is to have meaning, a criminal law should operate uniformly in circumstances which are not materially different. Consequently, even if in some circumstances a well-founded fear of attack is a necessary but not decisive criterion of 'reasonable excuse', courts will have to formulate various conditions which disqualify some, but not all, individuals or groups from taking advantage of the 'reasonable excuse' protection afforded by s.545E(2). That means that, under the label 'reasonable excuse', the courts will have to make what are effectively political judgments by looking for material differences justifying the distributive operation of the criminal law in a variety of circumstances which have many, sometimes almost identical, similarities with each other. Put at its lowest, the courts will have to make value judgments as to what circumstances giving rise to a well-founded fear of attack entitle a person to arm him or herself with a prohibited article or thing. That is to say, the courts will have to make a judgment as to what circumstances deserve to be exempted from the scope of s.545E(1). Courts will have to distinguish between the case of the criminal or hoodlum who has a well-founded fear of attack and other cases or otherwise hold that a well-founded fear of attack is always a `reasonable excuse' for carrying an article or thing coming within s.545E(1).

However, I do not think that these passages lead to a conclusion that sub-s.11(1) excludes a trespass like that committed by the defendants. Given that they had genuine beliefs that cruelty to battery hens was occurring on the Parkwood premises and that the authorities were turning a blind eye to it, the question is whether in that state of belief they had reasonable excuse to enter at night, in company with each other and other persons, with the intention of chaining themselves to the premises and remaining until they could be removed, in order to draw attention to the plight of the hens and the inaction of the authorities. There is nothing at all in the section to suggest that it is not directed to that sort of activity. There is nothing in the section which requires intention to be violent or to damage property or to trespass for more than a relatively short time. True it is that the Public Order Act (subtitled "An Act relating to the Preservation of Public Order in Certain Territories and in respect of Commonwealth Premises and the Premises and Personnel of Diplomatic and Special Missions, Consular Posts and International Organizations") is concerned mainly with offences involving the protection of premises and property for which the Commonwealth has responsibility and in particular protection from injury or invasion by persons assembled together. But s.11, which is clearly within Commonwealth power, is directed to "additional offences on premises in a Territory" (emphasis added) and is clearly not restricted to conduct which is violent or committed by assembled persons. Its otherwise draconian effect is tempered by the requirement that a trespass is not punishable unless proved to have been committed without reasonable excuse. The cryptic reference to demonstrations of the "Ray O'Shaughnessey type" is not very clear, but it suggests that what the Magistrate had in mind was that a peaceful trespass was justified if the trespasser was motivated to enter by a genuine and valid belief. The reasonableness of the beliefs may not be without relevance, but it is not determinative. The question is whether in all the circumstances the defendants trespassed with reasonable excuse. Unfortunately, I think that the Magistrate confused the two questions and took the reference in the High Court judgment at 465 to "political judgments and value judgments" to mean, as was urged on behalf of the defendants at that stage, that the balancing exercise required the weighing, on the one hand, the relative social and moral factors which favoured a proscription of the defendants' conduct and, on the other hand, those which favoured their beliefs as well as their conduct. This appears to be the only explanation of the Magistrate embarking upon the inquiry as to whether the views of the defendants were correct in fact and whether Parkwood Eggs was guilty of offences under the Animal Welfare Act.

There are other reasons why I think the Magistrate's approach was incorrect as a matter of law.

First, it is well established with reference to similar phrases in other legislation that terms like "reasonable excuse" are to be applied using an objective test. The standard of the hypothetical ordinary member of the community in the position of the person concerned is generally the standard to be applied in deciding what is reasonable.

Secondly, it is permissible and perhaps necessary in particular cases, for the source of the person's belief to be indicated in evidence, particularly if the basis is outside the range of experience of the hypothetical ordinary member of the community and therefore outside the experience of the tribunal of fact. However, there is no need and no justification for an inquiry to be made as to the validity of the belief by reference to the foundations which underlie it. Otherwise the case would become an open-ended inquiry on issues which the legislation could not be concerned to address. That appears to have been what has happened in the present case. Instead of a hearing and determination as to guilt or otherwise under sub-s.11(1) of the Public Order Act, it became an inquiry into the practice of battery hen production, the failure of authorities to police the requirements of the Animal Welfare Act, and even into the question whether Parkwood Eggs had committed offences against the Animal Welfare Act. It is hardly surprising that the Magistrate remarked that the evidence was "all one way". The informant, who had laid a charge under the Public Order Act, could not be expected to come to court equipped to meet a case concerned with the Animal Welfare Act or animal welfare issues generally.

Thirdly, the Magistrate's inquiry ended in an express finding by a court that Parkwood Eggs, which was not a party to the proceedings and not represented, was guilty of breaches of a statute which was not the statute for breach of which the informant had brought the prosecution. There are of course from time to time situations in litigation which require findings that conduct (even conduct of a person who is not a party to the proceedings) amounts to criminal conduct. But this is not such a case and such findings like that should not be made unless they are necessary.

Lastly, there is no logical connection between the finding that, assuming Parkwood Eggs was guilty of breaches of the Animal Welfare Act, the defendants were justified in trespassing on Parkwood Eggs premises in order to draw attention to those breaches.

I have no doubt that if the Magistrate had applied the objective test of the hypothetical ordinary member of the community, not to the justification of the defendants' beliefs, but to the justification of their entry and remaining upon their premises until their arrest, then there would have been a finding that the defendants lacked reasonable excuse for their conduct. Attention has already been drawn to the fact that they entered in the company of other persons, that their entry was in the night, that they chained themselves to the cages, and so on. The Magistrate was not entitled to apply what was not the community standard but his own standard, influenced as it was by irrelevant evidence and by the arguments of counsel based upon such evidence, and then to reach a conclusion that the defendants' conduct was justified as a "mild trespass committed in order to make a point and then leave". The objective test required a finding on the criminal standard that the defendants' trespass lacked reasonable excuse.

The question then requires a consideration of what order this Court should make. I do not think it appropriate for this Court to embark in any substantial way upon an inquiry as to penalty. On the other hand, it is clear that if the case is remitted to the same Magistrate, the defendants will be discharged under s.556A of the Crimes Act 1900. If remitted to another Magistrate, a heavier penalty might well be imposed. For reasons which I tried to articulate in Myers v. Claudianos [1990] ACTSC 12; (1990) 100 FLR 362, it is undesirable that the defendants be placed in double jeopardy. As a disposition under s.556A would have been within the discretion of the Magistrate, I therefore make the following orders:

1. The order nisi of 21 March 1997 is made absolute.

2. The Magistrate's orders of 18 February 1997 dismissing the informations are set aside and, the Court being satisfied that the charges are proved, in lieu thereof makes an order under sub-s.556A(1) of the Crimes Act 1900 that, having regard to sub-paragraphs (i),(ii) and (iii) of para.556A(1)(b), it is of the opinion that it is inexpedient to inflict any punishment and dismisses the charges.

3. Costs of and incidental to the appeal be paid by the appellant as agreed or taxed.