Bloomfield v Brown [2003] ACTSC 43 (4 June 2003)

Last Updated: 7 July 2003

DARREN ALBERT BLOOMFIELD v R D BROWN

[2003] ACTSC 43 (4 June 2003)

APPEAL - against conviction and sentence - Public Order (Protection of Persons and Property) Act 1971 (Cth) - consent necessary for prosecution - whether consent obtained - whether certain land "Commonwealth premises" - whether person authorised to issue direction to leave - whether appellant had reasonable excuse to remain on land.

Public Order (Protection of Persons and Property) Act 1971 (Cth), ss 12(2)(c), 23

Explosive Substances Act 1883

War Precautions (Military Service Referendum) Regulations 1917

Australian Capital Territory (Planning and Land Management) Act 1988, ss 43, 49

Evidence Act 1995 (Cth), s 155

Crimes Act 1914 (Cth), s 4AA

R v Bates [1911] 1 KB 964

McDonnell v Smith [1918] HCA 26; (1918) 24 CLR 409

Coe v Commonwealth of Australia [1978] HCA 41; (1978) 24 ALR 118

Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1

Coe v Commonwealth of Australia [No 2] [1993] HCA 42; (1993) 118 ALR 193

Mark v Henshaw (1998) 101 A Crim R 122

Commonwealth DPP v Luscombe and Others (unreported, District Court of New South Wales, 28 January 2000, Kirkham DCJ)

Campbell v Fortey (1987) 85 FLR 462

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 28 of 2002

Judge: Connolly J

Supreme Court of the ACT

Date: 4 June 2003

IN THE SUPREME COURT OF THE )

) No SCA 28 of 2002

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: DARREN ALBERT BLOOMFIELD

Appellant

AND: R D BROWN

Respondent

ORDER

Judge: Connolly J

Date: 4 June 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal against conviction and sentence be dismissed.

1. This is an appeal from a decision of the ACT Magistrates Court which, on 24 April 2002, found the appellant guilty of one offence contrary to s 12(2)(c) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (the Act) and pursuant to that finding of guilt convicted the appellant and imposed a fine of $500, to be paid within 12 months. The charge related to the appellant's presence and alleged refusal to leave a construction site near the edge of Lake Burley Griffin and opposite Old Parliament House on 5 July 2001.

2. The site, being Section 56, Parkes in the Australian Capital Territory, was being used for the construction of what is now known as Commonwealth Place. The appellant, an Aboriginal Australian, whose address for service is the Aboriginal Tent Embassy, Parkes, ACT, was involved in a protest action on the site which involved the lighting and maintaining of a fire, which the appellant understands to have real spiritual significance. The case against him in the Magistrates Court was that he refused to leave the site, which was said to be "Commonwealth premises", when instructed to do so by a person with appropriate authority.

3. The appellant challenges the conviction upon a number of technical grounds, and also on the more general ground that, he says, the land which he was ordered to leave was Aboriginal land. It is further argued that video material tendered in the Magistrates Court in fact shows the appellant attempting to leave the site before he was arrested. He also challenges the sentence. The grounds of appeal were set out fully in an amended notice of appeal filed in court on the day of the hearing of the appeal. Comprehensive and helpful written submissions were prepared by counsel for the appellant, and counsel for the respondent.

4. The technical challenges to the conviction are based on the argument that the prosecution was flawed because certain requirements in the Act had not been complied with in relation to the instigation of the prosecution, that there had not been sufficient proof that the site which the appellant was ordered to leave was "Commonwealth Premises" within the meaning of the Act, and that the prosecution had failed to prove that the appellant had been properly ordered to leave the premises.

5. The offence with which the appellant was charged provides:

12 Additional offences on Commonwealth premises

(1) A person who, without reasonable excuse, trespasses on Commonwealth premises is guilty of an offence, punishable on conviction by a fine of not more than 10 penalty units.

(2) A person who:

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

(b) being in or on Commonwealth premises, behaves in an offensive or disorderly manner; or

(c) being in or on Commonwealth premises, refuses or neglects, without reasonable excuse, to leave those premises on being directed to do so by a constable, by a protective service officer, or by a person authorized in writing by a Minister or the public authority under the Commonwealth occupying the premises to give directions for the purposes of this section;

is guilty of an offence, punishable on conviction by a fine of not more than 20 penalty units.

6. There are procedural restrictions within the Act on the way in which proceedings may be brought. These are set out as follows:

23 Prosecutions

(1) Offences against this Act, other than an offence against section 7 or section 16, are punishable on summary conviction.

(2) Proceedings for:

(a) the commitment of a person for trial on indictment for an offence against this Act; or

(b) the summary prosecution of an offence against this Act;

shall be instituted only with the consent in writing 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, by writing, to give such consents.

(3) Notwithstanding that a consent has not been given in relation to an offence in accordance with subsection (2):

(a) a person may be charged with an offence against this Act;

(b) a warrant for the arrest of a person for such an offence may be issued;

(c) a person may be arrested for such an offence; and

(d) a person charged with such an offence may be remanded in custody or on bail;

but no further step in proceedings of a kind referred to in that subsection shall be taken in relation to the offence until such a consent has been obtained.

7. It was agreed that the course of this matter prior to the conviction was that the appellant was arrested on 5 July 2001, and was taken to the City Watch House where he was bailed to appear in the ACT Magistrates Court on 26 July 2001. He appeared on that occasion and pleaded not guilty to two charges pursuant to s 12 of the Act. A plea of not guilty in the Magistrates Court invokes the operation of Practice Direction No 2 of 1999 in relation to case management hearings, and the proceedings were adjourned to a case management hearing on 4 October 2001, with the appellant on bail. There was some confusion on this date and the appellant did not appear, so the matter was re-listed for 11 October 2001. On this occasion the appellant indicated that all witnesses were required, and re-affirmed a not guilty plea. The matter was set down for trial on 5 December 2001. The matter did not proceed on that date, and was stood over to a new hearing date of 22 March 2002, when the matter proceeded. The bench sheet is reproduced in the appeal book at 21, and the reverse side of this bench sheet records that on 23 March 2002 a plea of not guilty was entered. There is no record of any other plea being entered on the other dates of mention.

8. I have some concerns about the agreed facts, as I am told that a plea of not guilty was entered on 26 July 2001, whereas the bench sheet indicates that a formal plea was only entered on 23 March 2002, when the summary trial began. This may be a point of some significance.

9. It is common ground that a consent in a form required by s 23(2) of the Act was executed by an appropriate officer on 15 October 2001. This was tendered at the hearing, and is in the appeal book at 140. The appellant argues that because the consent was not executed until 15 October, the proceedings were rendered void ab initio from the point where a not guilty plea was entered on 26 July 2001, and that the consent cannot retrospectively cure this defect.

10. In R v Bates [1911] 1 KB 964, a person had been tried and convicted of an offence under the Explosive Substances Act 1883 which required the consent of the Attorney General before an indictment could be proffered. No such consent had been obtained. Lord Alverstone CJ delivered the opinion of the Court of Criminal Appeal and said at 965:

In our opinion the failure to obtain the consent of the Attorney General deprived the Court of any jurisdiction to try the prisoner on the indictment, and, that being so, the conviction must be quashed.

11. Mr Archer, for the appellant, conceded that in the present case the consent had been obtained prior to the trial and was before the Magistrate, but he argued that the requirement that "no further steps in proceedings" shall be taken had not been complied with because of the entry of the plea and the directions hearings, and so the Court was deprived of jurisdiction to proceed on the summary trial.

12. In McDonnell v Smith [1918] HCA 26; (1918) 24 CLR 409 a person had been charged with an offence under the War Precautions (Military Service Referendum) Regulations 1917 in relation to protest activities during the course of the conscription referendum. These regulations provided that an offence shall not be prosecuted summarily without the written consent of the Attorney General. Mr Smith was served with a summons dated 21 December 1917 alleging certain activity on 13 December 1917. He appeared before a justice on 14 January 1918, and the matter was stood over on two further occasions until it came before a Magistrate for hearing on 19 February 1918. The consent of the Attorney General was obtained on 14 February 1918. The High Court affirmed a decision of the Supreme Court of New South Wales setting aside the conviction saying, at 412 per Barton, Gavan Duffy and Rich JJ:

The Legislature when it said "prosecuted" did not mean "dealt with". What the legislature has said means that a prosecution shall not be begun without the prescribed consent, and the prosecution is begun when the information is laid.

13. Rich J referred in argument to the purpose of the section requiring consent to a prosecution, saying at 411:

The necessity for getting the prescribed consent to a prosecution is a check on irresponsible persons who might heatedly, although from patriotic motives, institute proceedings. The mischief aimed at ... is the harassing of people by frivolous prosecutions. Must not the initial stage of the proceeding be sanctioned by some responsible person.

14. Mr Archer took me to the legislative history of this Act, which was introduced at a time of significant controversy arising from public demonstrations against apartheid era sporting teams and the Vietnam war. It is clear from the Senate Hansard of 16 March 1971, 22 April 1971 and 6 May 1971 that this provision was meant also to enhance public confidence that frivolous prosecutions would not be launched under this Act.

15. Section 23(2) says that proceedings for summary prosecution for an offence "shall be instituted only with the consent" of the Director and, standing alone, this section would, on the authority of McDonnell v Smith, lead to the conclusion that the bringing of the charge without the consent being in force renders the conviction bad. Section 23(3), however, provides that notwithstanding that a consent has not been given in relation to an offence in accordance with subsection (2), a person may be charged (s 23(3)(a)) and remanded in custody or granted bail (s 23(3)(d)). This, it seems to me, is what has occurred in this case. It appears that Mr Bloomfield indicated an intention to plead not guilty, and there was a directions hearing convened pursuant to the practice direction, but the bench sheet records a plea first being entered on 22 March 2002, which was after the formal consent to prosecute had been obtained. It seems to me that this was not inconsistent with the Act.

16. Had a plea been entered, however, the proceedings would have been beyond jurisdiction. Mr White, for the prosecution, conceded that a guilty plea entered before a consent had been obtained would render the conviction void. The formal entry of any plea, be it guilty or not guilty must, it seems to me, amount to a "further step in the proceedings" which requires the consent in writing of the Director.

17. It is clearly desirable for a consent to be obtained, or a decision that a consent will not be provided be made, as soon as possible after a charge has been laid. In this case it took from July to October before the consent was obtained, and during that time the appellant was twice before the court for mention. It seems that on those two occasions he indicated an intention to plead not guilty, but no formal plea, on the record of the court below in the appeal book before me, was entered until 22 March 2002. While there may be legitimate criticism of the time the prosecution took to file the consent, it seems to me that no breach of s 23 of the Act has occurred as all that formally occurred is that the appellant was bailed over to successive dates when the matter was mentioned. All that formally occurred was a series of remands on bail, which is expressly provided for in the Act notwithstanding the absence of the consent.

18. The next point raised by the appellant is the question of whether the prosecution had established that the land in question was part of "Commonwealth premises". This term is defined in s 4 of the Act as follows:

Commonwealth premises means premises, whether in a State or in a Territory, occupied by the Commonwealth or by a public authority under the Commonwealth.

Premises means any land, building or part of a building.

19. There is provision in the Act for the Commonwealth to issue a certificate to prove conclusively that an area was "Commonwealth premises", but it is common ground that no certificate issued in the present case. The only evidence lead at the hearing as to the status of the land was oral evidence given by Mr LS Evans, who was identified in the transcript as the Managing Director, Business, National Capital Authority (AB 65). He gave evidence at pages 62-64 of the transcript (AB 65-67) that Commonwealth Place was the construction site where this incident occurred, that that site is Section 56, Parkes, and that the land was declared to be national land in March 1989, and that since January 1993 the National Capital Authority had been responsible for the land in question.

20. Mr Evans was not cross-examined on any of this evidence. No evidence was lead by Mr Bloomfield to the contrary, other than the assertion that the land was Aboriginal land. It seems to me that the learned Magistrate had sufficient evidence before her to satisfy herself, to the requisite standard this being a criminal prosecution, that the incident occurred on Commonwealth premises, being land "occupied by the Commonwealth or a public authority under the Commonwealth". While the prosecution was to some extent criticised by the appellant for failing to prove this aspect of the case by way of a conclusive certificate pursuant to s 13 of the Act, it seems to me that this criticism is misplaced, as by giving the evidence through Mr Evans the prosecution, fairly, gave the appellant the opportunity to cross-examine or put on contrary evidence, an opportunity that would be denied if a certificate had been provided. A prosecution authority can hardly be criticised for declining to resort to a conclusive certificate, and instead rely on oral evidence to prove a fact in issue, thus affording a greater opportunity to the accused person to challenge this aspect of the case. It seems to me that this aspect of the appeal must also fail.

21. The next ground of appeal is that there was insufficient evidence to properly satisfy the learned Magistrate that the appellant had been directed to leave the premises by "a person authorised in writing by a Minister or the public authority under the Commonwealth occupying the premises to give directions for the purposes of this section" as required by s 12(2)(c).

22. Mr Bloomfield was originally charged with two offences, one alleging that he had failed to leave after being directed to do so by a person authorised in writing by the public authority under the Commonwealth occupying the premises, and one that he had failed to leave after being directed to do so by a police officer. He was convicted only on the first charge, and accordingly the Magistrate had to be satisfied that he was directed to leave the premises on 5 July 2001 by a person authorised in writing by the public authority under the Commonwealth occupying the premises.

23. Mr Evans gave evidence at the hearing that on 5 July 2001 he attended the premises and read out a statement that was tendered in the hearing as exhibit 4 (AB 144). The statement reads:

My full name is Lindsay Stewart Evans.

I am a person authorised in writing by the National Capital Authority to give directions for the purpose of section twelve two c of the Public Order Protection of Persons and Property Act 1971 in relation to premises occupied by the National Capital Authority including this land comprising of Section 56 Parkes in the Australian Capital Territory.

I am hereby directing you to leave these premises now.

24. Tendered before the Magistrate during Mr Evans' evidence was the authorisation that he relied on (exhibit 3, AB 142). This states:

NATIONAL CAPITAL AUTHORITY

(COAT OF ARMS)

PUBLIC ORDER (PROTECTION OF PERSONS AND PROPERTY) ACT 1971

AUTHORISATION

I, Air Marshall David Evans, Chairman of the National Capital Authority, in accordance with a resolution of the National Capital Authority on 3 July 2001, hereby declare that the person holding office or acting in the office of Chief Executive of the National Capital Authority is authorised to give directions for the purposes of section 12(2)(c) of the Public Order (Protection of Persons and Property) Act 1971 in relation to premises occupied by the National Capital Authority including the land comprising Section 56 Parkes in the Australian Capital Territory.

25. The authorisation was signed by Air Marshall David Evans on 3 July 2001.

26. The authorisation was attacked on the ground that it was signed by the Chairman of the National Capital Authority. The Australian Capital Territory (Planning and Land Management) Act 1988, which creates the National Capital Authority, provides that the Authority may delegate its powers to the Chief Executive, but does not provide for a delegation to the Chairman (ss 43, 49).

27. It seems to me that this argument is misconceived, in that the authorisation is not a delegation to or by the Chairman, but a record of a Commonwealth body recording a resolution of the Authority authorising certain persons to give directions. The Chairman signed the authority, but this does not mean that he is invalidly purporting to exercise a delegated power. Rather, he is authenticating the document which records the proper resolution. The document on its face is a Commonwealth record within the meaning of s 155 of the Evidence Act 1995 (Cth) (the Evidence Act), and accordingly it is to be presumed that the document is what it purports to be, unless there is sufficient evidence to raise doubt about the presumption (Evidence Act, s 155(2)).

28. The second ground of attack on the authorisation was that it is said that there was insufficient evidence that Mr Evans was the person authorised in writing in exhibit 3. It is true that in his evidence-in-chief Mr Evans identified himself as the Managing Director, Business, of the National Capital Authority, and did not identify himself as the acting Chief Executive. In cross-examination he said (T 71, AB 74):

... I was granted authority - or given authority specifically in writing ... as the Acting Chief Executive to attend the site.

29. There was no further cross-examination on this point. It seems to me that the learned Magistrate thus had evidence that could allow her to be satisfied that Mr Evans was the person authorised by the National Capital Authority, and there was no error in her being so satisfied.

30. It was further argued that the learned Magistrate erred in finding that the appellant failed to leave the site. This issue was not, it seems to me, in contest at the hearing. Evidence was given by Mr Evans (AB 72-73), Detective Superintendent Hepworth (AB 47-51), Detective Senior Constable Brown (AB 25-28) and Constable O'Meagher (AB 40-42) that after Mr Evans gave the direction, the group of persons on the site, including the appellant, did not move. Superintendent Hepworth then gave another direction, and again it is said they did not move. Mr Bloomfield in his evidence said that after he was told by Mr Evans to leave he "just continuously said, `There has been no negotiation, you cannot negotiate with me, this fire cannot go out until the instructions of the elders say so'" (AB 95). He said that he told Mr Evans "I cannot move from this fire" (AB 95).

31. It was argued that a police video tape of the arrest of Mr Bloomfield, tendered at the hearing, was ambiguous and showed conduct that could be consistent with Mr Bloomfield beginning to walk towards the gate just before he was arrested. On this basis, it is said that the learned Magistrate erred in finding that there had been a failure to leave.

32. I have viewed the tape, and had Mr Bloomfield given evidence before the Magistrate that after he had heard the instruction to leave he had considered his position, and started to comply before being arrested, there would be substance in the submission. The tape does show him moving away from the fire and towards the boundary of the premises just before being arrested, although it also shows him moving back towards the fire at the very point of arrest. But his evidence before the Magistrate was to the contrary. It was his evidence that he did not and could not leave the site until he was authorised by Aboriginal elders. The Magistrate did not err in her finding that there was a failure to leave.

33. The real issue at the hearing before the Magistrate, it seems to me, was the final point of the appeal on conviction, that is that the appellant had a reasonable excuse in failing to leave the site. The appellant and Mr K Buzzacot, an Aboriginal elder, gave evidence that it was their belief that the whole of Australia was a sacred place to Aboriginal people, and that there was no justification for them to be told to move off Aboriginal land. I have no doubt that this is a sincerely held belief.

34. While it was urged upon me that the appellant asserts vigorously that he and his people have an entitlement to be on this land, and indeed any land, Mr Archer acknowledged that there was clear High Court authority which was contrary to that proposition. The sovereignty of the Commonwealth of Australia over the continent of Australia was challenged unsuccessfully in Coe v Commonwealth of Australia [1978] HCA 41; (1978) 24 ALR 118. Although the High Court famously in Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1 recognised that native title survived colonial settlement in certain circumstances and was recognised by the common law, this did not reverse the finding in Coe v Commonwealth of Australia, and indeed when the assertion was made in Coe v Commonwealth of Australia [No 2] [1993] HCA 42; (1993) 118 ALR 193 that the Wiradjuri tribe has sovereignty over lands in the region encompassing Canberra this was again rejected. Mason CJ said at 200:

Mabo (No 2) is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia.

35. It is not open to the learned Magistrate or to me in the face of this authority to find that Mr Bloomfield was in law entitled to be on the land, or that the land was Aboriginal land and not Commonwealth premises.

36. This is not to say that it was not open to the Magistrate to find that the appellant had a genuine and sincere belief in his cause, and indeed she did so find. But in considering the effect that a belief in the validity of a cause has on whether a person has a reasonable excuse for not obeying a law, the learned Magistrate had to apply the law, as she did. The appropriate authority in this jurisdiction, which was identified and applied by the Magistrate, is the decision of the Full Court of the Federal Court in Mark v Henshaw (1998) 101 A Crim R 122.

37. That was a case where members of a group called Animal Liberation attended upon and obtained unlawful entry to a battery hen egg production facility near Canberra. They carried with them identification cards stating that their sole purpose was to give aid to animals that they believed were suffering. They were charged with an offence under s 11 of the Act, namely trespass without reasonable excuse on premises in a Territory. They were acquitted at first instance by a Magistrate on the grounds that they had a reasonable excuse. This decision was set aside by the then Chief Justice, and that decision was itself subject to appeal in the Full Court of the Federal Court.

38. The Court (Gallop, O'Loughlin and Finn JJ) accepted that the appellants were genuine in their beliefs. They said at 126:

We have no reason to question the integrity of the four appellants. We are quite sure that they hold genuine beliefs that battery hen farming is cruel. What is more, they are entitled to pursue their cause, vigorously and repetitively. But citizens, in all walks of life, must conduct themselves within the law and according to the law.

39. The Court also stated (at 124-125) that:

However, the critical issue in determining whether the appellants entered upon the premises of Parkwood Eggs with a reasonable excuse is not the appellants' beliefs or their state of mind. Whilst those factors are relevant and may afford some assistance to the trier of fact, the final answer will always come from an objective assessment of the particular facts of each case; that assessment requires a consideration of not merely the trespassers' beliefs and state of mind: it requires the application of community standards. In particular, it requires the trier of fact to determine whether the trespassers' conduct is acceptable to the community.

40. Mr Archer made the submission that there is a widespread tolerance of the occupation of what is undoubtably Commonwealth premises near Old Parliament House by the Aboriginal Tent Embassy. He referred to the longstanding presence of that protest, and referred to public statements from the Australian Capital Territory Government that this protest should continue to be tolerated. He said that the learned Magistrate should have had regard to the fact that the site of this protest was relatively close to the Tent Embassy.

41. These submissions, stressing community standards, may have real substance if there was any charge arising from a failure to leave the area known as the Aboriginal Tent Embassy that has existed and been, arguably, tolerated by successive governments and the broader community. But the learned Magistrate was, it seems to me, quite entitled to take the view that the evidence here was that this incident occurred at a different site, and at a site that had been fenced and was being readied, on the evidence, for the construction of Commonwealth Place. Mr Evans gave evidence that this construction had been approved by both Houses of Parliament. It seems to me that the Magistrate applied the proper test, and was entitled to come to the conclusions she did.

42. In Mark v Henshaw the Court concluded at 126 that:

We do not accept that it is reasonable to enter as a demonstrator, upon the premises of another, when the occupant is carrying on a lawful activity of which the trespasser disapproves. To find otherwise would mean that the citizen would not receive the protection of the law to which he or she is entitled. It would mean that any dissident might be at liberty to enter his or her opponent's premises in pursuit of a cause.

43. The evidence called by Mr Bloomfield from Mr Buzzacot was that all land in Australia is Aboriginal land and is sacred, and that any construction activity on that land is a desecration. I accept, as did the Magistrate, that Mr Bloomfield had that belief, but it cannot follow that from that belief Mr Bloomfield had a reasonable excuse to enter any land and make his protest.

44. The learned Magistrate, it seems to me, did not err in concluding that Mr Bloomfield did not have a reasonable excuse for failing to leave the land when directed.

45. The appeal against conviction is dismissed.

Sentence

46. The appellant argues that the sentence imposed by the learned Magistrate was manifestly excessive. The sentence was a fine of $500. The maximum penalty for the offence was 20 penalty units, which at the relevant time was $110 per unit (s 4AA of the Crimes Act 1914 (Cth) (the Crimes Act)), amounting to a maximum fine of $2,200.

47. It was argued that the prosecution had made a submission that a nominal fine would be appropriate. This was the case, but of course the sentencing discretion available to a Magistrate is not limited within the bounds of the maximum penalty proposed by the prosecution anymore than it is confined by the bounds proposed by the defence. It is apparent from the transcript that the learned Magistrate gave consideration whether the appellant should be dealt with by way of s 19B of the Crimes Act, proceeding without a conviction, but considered that having regard to the appellant's age and antecedents, this would not be appropriate. Mr Archer, in his submissions, acknowledged that the appellant's record "made problematic" the application of s 19B, but submitted that much of his record was as a juvenile, and the offence was in all the circumstances a minor one.

48. In Commonwealth DPP v Luscombe and Others (unreported, District Court of New South Wales, 28 January 2000) Kirkham DCJ considered an appeal by the Commonwealth from a decision of a Magistrate to decline to enter a conviction against protesters who had entered the Prime Minister's official residence in Kirribilli as part of a Greenpeace protest. The Judge set aside this decision, and imposed convictions with fines of $200 for each protester, saying at [17]:

There are many in the community who applaud and admire the work of Greenpeace and its members in raising serious environmental concerns and bringing them to the forefront of public debate. In the present instance, the means chosen contemplated police intervention and maximum publicity in the deliberate breaking of the law. Our society functions as a democracy with equal applicability of the law to all persons including members of Greenpeace. No one group has the right to expect more lenient treatment than the other because their goals are perceived by some to be public spirited having, it may be said, wide community support. It would be, with respect, a recipe for justifiable discontent within our community if mercifully weak penalties were applied in these cases but not in others falling under the same banner but not having the general public support that Greenpeace may well enjoy.

49. There is, it seems to me, much in what Kirkham DCJ here said. I should note however that it is apparent from the transcript that the learned Magistrate did consider the application of some form of bond or recognizance as an alternative to a fine after imposing a conviction. She would, in my view, have erred if she had chosen not to impose a conviction. She asked counsel for Mr Bloomfield, who was appearing on the question of sentence, whether he would comply with a bond, but it is apparent from the transcript (AB 18-20) that such an assurance was not given, and indeed Mr Bloomfield indicated that he could not promise not to commit further offences (AB 19), and that he may continue to take his fire "to do a ceremony". It seems to me that the learned Magistrate exercised her discretion appropriately in deciding that a bond or recognizance was not an appropriate sentence in circumstances where the appellant would not indicate that he would not re-offend.

50. That left her with no real alternative but to impose a fine and, it seems to me, that a fine of $500 with twelve months to pay cannot be considered excessive. She had evidence that the appellant was a man of limited means and that his sole source of income was $300 per week by way of social security payments. No evidence was given of his accommodation costs, but his place of residence was said to be the Aboriginal Tent Embassy. In these circumstances, the fine, being just under 25% of the maximum penalty, with twelve months to pay, does not seem to me to have been excessive in all of the circumstances and applying the appropriate test to an appeal against sentence from a decision of a magistrate (Campbell v Fortey (1987) 85 FLR 462). It seems to have been an appropriate penalty.

51. The appeal in relation to sentence is dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 4 June 2003

Counsel for the appellant: Mr K Archer (appearing pro bono)

Solicitor for the appellant: -

Counsel for the respondent: Mr J White

Solicitor for the respondent: Commonwealth Director of Public Prosecutions

Date of hearing: 12 May 2003

Date of judgment: 4 June 2003