The Judgment

CITATION: The Queen v Webb & Ors [2017] NTSC 94
WEBB, Timothy Edward Alexander
PESTORIUS, Margaret Cecila
PAINE, Andrew William
DOWLING, James Joseph
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NOS: 21712099, 21712100, 21712103, 21712105, 21712113
DELIVERED ON: 22 November 2017
DELIVERED AT: Alice Springs
HEARING DATE: 22 November 2017
CRIMINAL LAW – defences – where accused charged with entering a prohibited area (the Joint Defence Facility Pine Gap) and possessing a photographic apparatus under ss 9 and 17 of the Defences (Special Undertakings) Act 1959 (Cth) – whether defences under ss 10.3 sudden or extraordinary emergency and 10.4 self-defence of the Criminal Code Act 1995 (Cth) should be put forward for consideration by the jury – where accused believed the Joint Defence Facility Pine Gap was involved in facilitating drone strikes and bombing raids killing innocent civilians in foreign countries – whether accused discharged their evidential burden under s 13.2(2) of the Criminal Code Act 1995 (Cth) – whether the accused’s response was the only reasonable response – whether the accused believed conduct was a reasonable response – whether accused’s subjective belief was reasonably held – whether conduct was necessary for self-defence – whether conduct was a reasonable response in the circumstances as perceived by the accused
Held: defences should not be put forward for consideration by the jury
Defence (Special Undertakings) Act 1952 (Cth) ss 9, 17
Criminal Code Act 1995 (Cth) ss 10.3, 10.3(2), 10.3(2)(b), 10.3(2)(c), 10.4, 10.4(2), 10.4(2)(a), 10.4(2)(b), 10.4(2)(c), 10.4(2)(d), 10.4(2)(e), 13.3, 13.3(2)
B v R [2015] NSWCCA 103, Leichhardt Council v Geitonia Pty Ltd (No 6) (2015) 209 LGERA 120; [2015] NSWLEC 51, Loughnan [1981] VR 443, Mark v Henshaw (1998) 85 FCR 555, Nguyen v The Queen [2005] WASCA 22, Oblach v The Queen (2005) 65 NSWLR 75; [2005] NSWCCA 440, Perka (1984) 14 CCC (3d) 385, R v Katarzynski [2002] NSWSC 613, Rogers (1996) 86 A Crim R 542, Warnakulasuriya v The Queen (2012) 261 FLR 260; [2012] WASCA 10
Plaintiff: Mr McHugh SC and Ms Dobraszczyk
Defendants: Self-represented
Plaintiff: Commonwealth Director of Public Prosecutions
Defendants: N/A
Judgment category classification: B
Judgment ID Number: Ree1702
Number of pages: 23
The Queen v Webb & Ors [2017] NTSC 94
File Nos. 21712099, 21712100, 21712103, 21712105 and 21712113
(Delivered 22 November 2017)
The charges
The five accused were charged under s 9 of the Defence (Special Undertakings) Act 1952 (Cth) that on 29 September 2016 they entered a prohibited area, namely the Joint Defence Facility Pine Gap (JDFPG), situated near Alice Springs in the Northern Territory of Australia.
One of the accused, Mr Paine, was also charged under s 17 of the same Act that, on the same date and at the same place, he was in possession of a photographic apparatus.
The defences sought to be raised
During the course of the trial, the accused sought to raise “defences” under ss 10.3 and 10.4 of Part 2.6 of the Criminal Code Act 1995 (Cth) (the Criminal Code).
Those sections relevantly provide:
10.3 Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
10.4 Self-defence
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(c) to protect property from unlawful appropriation, destruction, damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is committing criminal trespass;
and the conduct is a reasonable response in the circumstances as he or she perceives them.
The ruling sought
Having heard all the evidence to be called by the Crown and the accused, the Crown sought a ruling that:
Neither the defence under section 10.3, nor that under s 10.4 of the Criminal Code, raised by each of the accused, should be put forward for consideration by the jury in respect of any of the five accused on any of the charges in the indictment.
On 22 November 2017, I made this ruling.  My reasons for doing so are set out below.
For the purposes of this ruling and without making any admissions as to the truth or accuracy of the facts upon which their beliefs are based, the Crown was prepared to accept that, as at 29 September 2016, each of the accused believed that the JDFPG was a critical part of the satellite surveillance and communications systems whereby the US Defence Forces carried out drone strikes and bombing raids and thereby killed innocent civilians in countries such as Afghanistan, Iraq and Syria.
In oral submissions, one of the accused, Ms Pestorius said that, while each of the accused had, in their evidence, placed emphasis on different aspects when they described their beliefs about these matters, they all believed that, in the period immediately before 29 September 2016, the use of the JDFPG to carry out such drone strikes had increased significantly and they all believed that the sustained nature of those attacks constituted an extraordinary emergency.  She said they did not claim the emergency was a sudden emergency.
The evidential burden
In order to put these defences before the jury, the accused were required to discharge an evidential burden under s 13.3(2) of the Criminal Code.  That section provides:
A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.
The expression “evidential burden” is defined in s 13.3 of the Criminal Code to mean the burden of “adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist”.
The nature and extent of this burden was the subject of the following remarks by Simpson J in B v R:
Whether the appellant succeeded in discharging the evidential burden in relation to either defence was a question of law for the trial judge (s 13.3(5)). Such a burden may be discharged by “slender evidence”. Any evidence adduced or pointed to in support of either defence must be taken at its most favourable to the appellant: The Queen v Khazaal [2012] HCA 26; 246 CLR 601 at [74].
The evidence of the accused
The evidence the accused gave to attempt to discharge the relatively lenient evidential burden set by s 13.3 of the Criminal Code may be summarised as follows:
(a) Ms Pestorius
Ms Pestorius said that she entered the Prohibited Area at the JDFPG on 29 September 2016 to lament the people who had been killed in drone strikes and aerial bombings in the Middle East, Afghanistan and Africa. She claimed that she also intended to try to disrupt the operation of the JDFPG in order to stop the signals passing through that Facility that she believed were facilitating the drone strikes and bombings in question.
Ms Pestorius said in her evidence-in-chief that the accused entered the Prohibited Area at the JDFPG to take direct action about these concerns after their attempts to effect changes to public policy had failed. Specifically, she said:
And that’s why we don’t go to public policy to try and get change, because public policy has totally failed us and we are not here to try and influence public policy because public policy is a failure in this area.  We have been trying in public policy for 15 years.  And so we went there directly to try and stop the strikes, to try and stop that information going from A to B and from B to C and C down to some poor villager on the ground who is being killed in the middle of nowhere.
In cross-examination, Ms Pestorius said her attempts to effect change to public policy included making submissions and writing letters to Parliamentarians, speaking to members of the media. She also said she was a member of the Greens Party. By these means, she said she wanted to communicate her concerns about the use to which the JDFPG was being put to the wider public. However, she said she did not think these activities were “very effective … for the peace movement”. In particular, she said:
I do not trust in my ability to influence the parliament through anything I am doing.  If the parliament respond to a change in values from the people at some point, or if the people force a response on the government, then Hallelujah, we will have change.  But there are a lot of other steps before that.  That is not my focus.  That is the ordinary way of seeing power change and I think it’s a failure of a way.  I am a non-violent activist and being a non-violent activist is about disruption, stopping harms, facing up, witnessing, speaking truth to power.  It’s not about lobbying politicians so that they might change because they don’t.
(b) Mr Paine
In evidence-in-chief, Mr Paine described his actions in entering the Prohibited Area at the JDFPG on 29 September 2016 as “non-violent civil disobedience”. He said his approach was to go “to where it happens and try … to disrupt it”. He said he and his fellow accused wanted to gain publicity for their actions and that was why he used Ms Pestorius’ mobile telephone to live stream their activities within the Prohibited Area on Facebook. He also said that he wrote about their actions in entering the Prohibited Area afterwards “in the hope that that would continue in many ways to build peace in the world”. He said that he thought those writings were published on a website called “”.
In cross-examination, Mr Paine said that he believed in “the power of social movement to bring change”. That included, he said, “protests or processions”. He said he had been involved in protests at the JDFPG before 29 September 2016. He also said: “There’s many different ways that I hope to disrupt [the JDFPG]. Starting conversations is one. Occasionally walking up to the base is one.”
(c) Mr Franz Dowling
In his evidence, Mr Franz Dowling said that he and his fellow accused had a mutual concern for the threat they thought was posed by the operations at the JDFPG to the lives of innocent civilians. He said “this we considered an extraordinary emergency”. He said that they planned an action on 29 September 2016 and: 
we decided that this action would include a lament, so channelling my own and Margaret [Pestorius’] musical passion, we composed a piece of music that was composed in a way that paid tribute to those who – those innocent lives that had been destroyed or heavily impacted on by [the JDFPG’s] operations.
Mr Franz Dowling said that he thought “lobbying and of talking to parliamentarians and all of this” was ineffective. As to the reason why they went to the Prohibited Area at the JDFPG, he said:
We saw this place as being a facility that allowed war crimes and deaths of innocence to happen and we went there and we prayed and we did what we could to try to disrupt this base and to try to bring people’s attention to this base and, ‘Hey, this is a horrible thing,’ and people need to know about this and people need to do something about this and so that was why we were there on that day …
In cross-examination, Mr Dowling said they planned to hold a lament inside the Prohibited Area on 29 September 2016, but they had not discussed disrupting the operation at the JDFPG, although he said he would have done that if he had been given the chance to.
(d) Mr Webb
In his evidence-in-chief, Mr Webb said that their conduct on 29 September 2016 was about “challenging injustice when it comes by”. He said that:
you can stand up whenever something does sort of come up that your conscience tells you that something is wrong in the world and you’re allowed to do something about it – even if the wrongdoing has been carried out by the government itself.
In cross-examination, Mr Webb said that, on 29 September 2016, the action he took “was to go to the facility and assist [his] co-accused to play their musical instruments and lament”. He said that as a member of the Peace Movement, he had been involved in protests, marches and vigils. He agreed those activities brought his concerns to the attention of “a wider audience” and were a “reasonable response” to his concerns about the JDFPG.
(e) Mr James Dowling
In his evidence-in-chief, Mr James Dowling described how he and his fellow accused went into the Prohibited Area at the JDFPG on 29 September 2016 as “lamenting all the killing that has been done and is being done and [the JDFPG’s] role in that”. He said that in:
… late September 2016 a group of us came here to Alice Springs coinciding with the IPAN conference to lament and resist the role of [the JDFPG] in all this mindless killing whether by drones or fighter planes or people on the ground killing one another.
Furthermore, he said:
So on that night in question we went onto the base as lots of people have explained already.  Margaret and Franz played the lament on viola and guitar and we walked up that hill with the music playing, lamenting all the killing that has been done and is being done and [the JDFPG’s] role in that.  While we were walking up that hill I carried a large poster about a metre high by half a metre wide depicting a US strike in Baghdad [at] the start of the 2003 war.
In cross-examination, Mr Dowling said he did not acknowledge what he regarded as “unjust laws”. He said he used his “informed conscience” to determine whether particular laws were just or unjust. He said he went to the Prohibited Area at the JDFPG on 29 September 2016, partly to lament and to “[resist] the war crimes of [the JDFPG], [and the] Australian Government” and to “resist the war machine”. He said they were “part of a non-violent resistance to [the JDFPG]”.
The elements of the s 10.3 defence
The matters the existence of which the defence under s 10.3 were concerned with are the elements of that defence as set out in s 10.3(2).  Those elements are that, in carrying out the conduct, the accused “reasonably believe[d]”:
(a) the circumstances of a sudden or extraordinary emergency existed; and
(b) committing the offence was the only reasonable way to deal with that emergency; and
(c) the conduct was a reasonable response to that emergency.
It is important to note that, if any one of the above three elements of the s 10.3 defence, or any one of the elements of the defence under s 10.4(2), does not exist as a reasonable possibility on the evidence, the accused will have failed to discharge their evidential burden with respect to that defence.
The element in (a)
The expression “sudden or extraordinary emergency” is obviously central to the element in (a) above). In Warnakulasuriya v The Queen, (Warnakulasuriya) Pullin and Buss JJA made the following observations about the meaning of that expression.  First, whilst noting that the words “sudden” and “extraordinary” bore their ordinary meaning, Pullin JA observed:
… Clearly the concepts of “sudden emergency” and “extraordinary emergency” can overlap. An emergency can occur “suddenly” and require immediate action. An “extraordinary emergency” may develop over time but even an extraordinary emergency will eventually require some degree of immediacy in response to it as the trial judge correctly said.
(Emphasis in original)
On the same topic, Buss JA said that:
49 It is unnecessary for an emergency to be both sudden and extraordinary. The emergency may be either sudden or extraordinary: see Nguyen v The Queen [2005] WASCA 22 at [17] (Templeman J, Murray J agreeing and McLure J agreeing generally).
50 However, the concepts of a “sudden” emergency and an “extraordinary” emergency may, in a particular case, overlap. That is, an emergency may, in a particular case, be both “sudden” and “extraordinary”.
Additionally, Buss JA later referred to the following pertinent observations of Templeman J in Nguyen v The Queen:
(a) It may be relevant, in deciding whether an emergency is sudden or extraordinary, to have regard to the time which elapsed between the accused becoming aware of the emergency, on the one hand, and his or her acting in response to it, on the other. However, delay is not a “determinative factor”.
(b) The Crown cannot negative the defence by proving that no sudden or extraordinary emergency in fact existed. Although the absence of an actual sudden or extraordinary emergency may be a relevant factor, the ultimate question is whether the accused reasonably believed, in terms of s 10.3(2)(a), that circumstances of sudden or extraordinary emergency existed.
(Emphasis in original)
As to the interaction between the subjective and objective components of the element in (a) above, Buss JA observed:
… This element incorporates a subjective component and an objective component. The subjective component is the existence of a belief by the accused that circumstances of sudden or extraordinary emergency existed. The objective component is that any such subjective belief by the accused must have been reasonable.
In this case, the element in (a) therefore calls for an objective assessment of the subjective reasonableness of the accused’s beliefs that the circumstances of the extraordinary emergency described above existed. Because of the value judgments that can intrude into this kind of analysis, particularly where the conduct in question involves a challenge to public policy, or the manner in which public authorities have enforced the law in a contentious area of political debate, in analogous situations, the genuineness of an accused person’s beliefs has usually been assumed by the courts:  see, for example, Mark v Henshaw involving a trespass directed to expressing concerns about a “battery hen” farming operation. In this ruling, I propose to take the same approach. Accordingly, I will assume, for the purposes of this ruling and without determining the question, that the accused reasonably believed that the circumstances of the extraordinary emergency as outlined above existed as at 29 September 2016.
The elements in (b) and (c)
On the two elements described in s 10.3(2)(b) and (c) above, Buss JA observed in Warnakulasuriya that:
[58] As to s 10.3(2)(b), it is an element of the defence that, at the material time, the accused reasonably believed that “committing the offence [was] the only reasonable way to deal with the emergency”. The term “the emergency” in s 10.3(2)(b) refers to the circumstances of sudden or extraordinary emergency within s 10.3(2)(a) that the accused reasonably believed existed. The element in s 10.3(2)(b) incorporates a subjective component and an objective component. The subjective component is the existence of a belief by the accused that committing the offence was the only reasonable way to deal with the circumstances of sudden or extraordinary emergency that he or she reasonably believed existed. The objective component is that any such subjective belief by the accused must have been reasonable.
[59] As to s 10.3(2)(c), it is an element of the defence that, at the material time, the accused reasonably believed that “the conduct [was] a reasonable response to the emergency”. The term “the emergency” in s 10.3(2)(c) refers to the circumstances of sudden or extraordinary emergency within s 10.3(2)(a) that the accused reasonably believed existed. The element in s 10.3(2)(c) incorporates a subjective component and an objective component. The subjective component is the existence of a belief by the accused that the conduct (that is, the conduct constituting the offence) was a reasonable response to the circumstances of sudden or extraordinary emergency that he or she reasonably believed existed. The objective component is that any such subjective belief by the accused must have been reasonable.
(Emphasis in original)
It can be seen that, under the element in (b), the question is whether the accused reasonably believed that breaking the law was the only reasonable alternative means of dealing with the extraordinary emergency they believed existed. Thus, that element requires, first, that the accused held a subjective belief that there was only one reasonable way to deal with the extraordinary emergency, namely committing the offence; and secondly, that their subjective beliefs in that respect were reasonably held.
It can also be seen that under the element in (c), the questions are: whether the accused believed that the conduct concerned was a reasonable response to the extraordinary emergency; and whether that subjective belief was reasonably held.
In Oblach v The Queen, Spiegelman CJ (with whom Sully and Hulme JJ concurred) referred to the report of the Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General and pointed out that the element in (b) in both ss 10.2(2) and 10.3(2) of the Criminal Code was concerned with the necessity for the conduct, and the element in (c) in both those subsections was concerned with the response to the threat in question. Furthermore, his Honour noted that the Committee’s proposal to apply an objective test to both elements was intended to be an amalgam of common law principles and the equivalent provisions in the Griffith Code.
For the purposes of this ruling, it is worth reviewing the common law principles relating to the defence of necessity. As it happens, they were helpfully collated by Biscoe J in Leichhardt Council v Geitonia Pty Ltd (No 6). First, Biscoe J set out the three elements of the defence at common law as illuminated by the Full Court of the Supreme Court of Victoria in Loughnan as follows:
… there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect. The limits of this element are at present ill defined and where those limits should lie is a matter of debate. But we need not discuss this element further because the irreparable evil relied upon in the present case was a threat of death and if the law recognizes the defence of necessity in any case it must surely do so where the consequence to be avoided was the death of the accused. We prefer to reserve for consideration if it should arise what other consequence might be sufficient to justify the defence …
The other two elements involved … can for convenience be given the labels, immediate peril and proportion, although the expression of what is embodied in those two elements will necessarily vary from one type of situation to another.
The element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril … all the cases in which a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril. Thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed.
The element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril? …
(Emphasis added)
Secondly, Biscoe J referred extensively to the oft quoted judgment of Dickson J in the Supreme Court of Canada in Perka v The Queen and the test which the court held should be applied, as follows:
While necessity should be recognised as a defence through s 7(3) of the Criminal Code, it operates as an excuse rather than a justification. As an excuse, necessity rests on a realistic assessment of human weakness, recognising that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impelled disobedience. The defence must, however, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. That rationale is that it is inappropriate to punish acts which are normatively involuntary. There are a number of tests for determining whether the wrongful act was truly the only realistic reaction open to the actor, one of which is the requirement that the situation be urgent and the peril be imminent. At a minimum, the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a council of patience unreasonable. Another requirement is that compliance with the law be demonstrably impossible. If there is a reasonable legal alternative to disobeying the law then the decision to disobey becomes a voluntary one impelled by some consideration beyond the dictates of necessity and human instincts. One further requirement is of proportionality. The defence cannot excuse the infliction of a greater harm so as to allow the actor to avert a lesser evil. Accordingly, the harm inflicted must be less than the harm sought to be avoided. The defence does not fail merely because the accused were doing something illegal when the necessitous circumstances arose. On the other hand, the accused’s fault in bringing about the situation later invoked to excuse his conduct can be relevant to the availability of the defence of necessity. If the necessitous situation was clearly foreseeable to a reasonable observer, if the accused contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then it is doubtful that whatever confronted the accused was in the relevant sense an emergency. Mere negligence, however, or the simple fact that the accused was engaged in illegal or immoral conduct when the emergency arose, will not disentitle him from relying on the defence of necessity. Where the accused places before the court evidence sufficient to raise an issue that the situation created by external forces was so emergent that failure to act could endanger life or health and that, upon any reasonable view of the facts, compliance with the law was impossible, then the Crown must be prepared to meet that issue and there is no onus of proof on the accused.
(Emphasis added)
Thirdly, Biscoe J set out the important parts of the judgment of Gleeson CJ in the New South Wales Court of Criminal Appeal in Rogers as follows:
546 The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.
547 The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined. To adopt the language of Dickson J in Perka, the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law.
(Emphasis added)
Finally, his Honour made the following observations about the element in s 10.3(2)(c):
As explained in Loughnan and Rogers, the third element means, in other words, that a reasonable man in the position of the defendant would have considered that he had no alternative but to take the action that he took, which involved breaking the law, in order to avoid the peril.
(Emphasis added)
The accused failed to discharge their evidential burden re the elements in ss 10.3(2)(b) and (c)
With these principles in mind, I turn to consider whether the accused have discharged their evidential burden with respect to the elements in ss 10.3(2)(b) and (c). Even on the view most favourable to the accused, the summary of their evidence set out above demonstrates, in my view, that they have failed to discharge that evidential burden. First, with respect to the element in (b), there is no evidence that any of them reasonably believed that committing the offence of entering the Prohibited Area at the JDFPG on 29 September 2016 was the only reasonable way to deal with the extraordinary emergency they subjectively believed was posed by the activities being conducted at the JDFPG. To the contrary, their evidence shows that, both before and after 29 September 2016, they pursued the most obvious reasonable way to deal with the perceived extraordinary emergency, namely by lawful protest activities. Hence, their evidence shows that in the months and years before September 2016 and, indeed, since, they were, and have been, all actively involved in various legal protest activities, directed to agitating their concerns about the insidious use to which they believed the JDFPG was being put. More immediately, in the days leading up to 29 September 2016, they were all involved in legal protest activities outside the JDFPG and in the town of Alice Springs aimed at airing those concerns. Against this background, none of them identified any matter that altered that state of affairs on or about 29 September 2016 such that an illegal entry to the Prohibited Area on that date became “the only reasonable way” to deal with the extraordinary emergency that they believed existed. Instead, their evidence shows that, at about that time, they formed the view that their lawful protest activities were “ineffective”. Having formed that view, they decided to commit the offence of entering the Prohibited Area in order to gain greater public attention to their opposition to the use to which they believed the JDFPG was being put. That is reinforced by the fact that they chose to publicise their illegal entry to the Prohibited Area by “live streaming” the lament they conducted there to Facebook. In all the circumstances, this was therefore neither a reasonable way to deal with the perceived extraordinary emergency, nor the only reasonable way in which to deal with it.
For similar reasons, their conduct was not a reasonable response to the perceived extraordinary emergency within the terms of element (c) above. That is so essentially because, even accepting the genuineness of their concerns about the use to which they believed the JDFPG was being put, in all the circumstances, no response was required to that extraordinary emergency beyond continuing to pursue their longstanding and lawful protest activities to agitate their concerns about it. Put differently, their conduct of entering the Prohibited Area at about 4.00 am on 29 September 2016 and conducting a lament there for the victims of drone strikes and bombing raids in the Middle East and elsewhere was not, in any real sense, a response to the extraordinary emergency. They were not, in any real sense, “impelled” to break the law out of their altruistic concerns and no necessity existed of the kind described in the authorities referred to above. Rather, their conduct was a pretext adopted by them to gain additional media coverage and greater public attention to their concerns. In all the circumstances, it was therefore not a response to the extraordinary emergency or, if it was, it was not a reasonable response to it.
For these reasons, I do not consider the accused have adduced, or pointed to, any evidence that suggests that a reasonable possibility that the matter, or element, in either s 10.3(2)(b), or s 10.3(2)(c), existed. They have therefore twice failed to discharge their evidential burden under s 13.3 of the Criminal Code.
The elements of the defence under s 10.4
Turning then to the defence under s 10.4 of the Criminal Code, the matters the existence of which that defence is concerned with are whether, in carrying out the conduct, namely entering the JDFPG Prohibited Area, the accused believed:
(a) that conduct was necessary for one of the reasons set out in 10.4(2)(a) to (e); and
(b) that conduct was a reasonable response in the circumstances as he or she perceived them.
The reasons the accused have relied on are: to defend other persons (subsection 2(a)); and to protect the property of those persons from unlawful destruction, damage, or interference (subsection 2(c)).
As Spiegelman CJ pointed out in Oblach, there is a significant difference between the requirements of s 10.3 and those of s 10.4. First, the belief stated in the chapeau to s 10.4(2) does not have to be reasonably held. Secondly, the test stated in the concluding words of s 10.4(2), with respect to the reasonableness of the response, is conditioned by the circumstances as perceived by the person concerned.
With respect to these two requirements, in Oblach, Spiegelman CJ referred to the judgment of Howie J R v Katarzynski and said that:
… the test of whether or not the accused believed that his or her conduct was necessary was a completely subjective test. However, the element of reasonable response involved an entirely objective assessment of the proportionality of the accused’s response to the situation which the accused subjectively believed he or she faced.
Since the belief in s 10.4(2) is entirely subjective, there is all the more reason for me to adopt the approach I took with respect to the belief stated with respect to the element in s 10.3(2)(a) above. The question which remains is whether the accused have adduced or pointed to any evidence that suggests a reasonable possibility that their response to the threat was reasonable in the circumstances as they perceived them to be.
For similar reasons to those stated with respect to the element in s 10.3(2)(c) above, and making allowances for the difference in the test for reasonableness in s 10.4(2) as outlined above, I do not consider that there is any such evidence. As I have already observed above, even accepting the genuineness of their concerns about the use to which they believed the JDFPG was being put, they were not, in any real sense, “impelled” to break the law as they did and nor were they forced by necessity to do so.
For these reasons, I considered that the accused had not discharged their evidential burden under s 13.3 of the Criminal Code with respect to the matters described in s 10.3(2)(b) and/or (c), or in s 10.4(2). Accordingly, I made the ruling set out at [5] above.

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Trial Day Eight (or something like that) – Peace pilgrims sentenced

19 days since our court case began in Alice Springs, 356 days since Federal Attorney-General George Brandis authorised our prosecution under the Defence (Special Undertakings) Act, and 431 days since we walked onto Pine Gap carrying musical instruments on a chilly early morning; today the trial of the five peace pilgrims (as well as that of our friend and fellow pilgrim Paulie Christie) finally concluded.
It did feel a bit strange, after an intense couple of weeks in Alice Springs, to come back to Brisbane and our everyday routine with the court case still hanging in the air. But one advantage of being back was when we went to court this time it was with a room full of friends and supporters. Many of those friends we hadn’t seen since before we left. So it was a wonderful scene out the front of the court having everyone together.
Journalists asked how we felt about potentially going to jail. We felt a bit silly answering the question – all the indications from the trial were that most of us at least were unlikely to receive a prison sentence. We didn’t want to engage in hyperbole (there’s enough of that in the media without us adding to it), but I suppose the Brisbane journalists didn’t know what had gone on at Alice. And besides, in the long time since we’ve been charged we’ve definitely each had to grapple with that possibility.
The fly-in fly-out nature of Northern Territory justice meant this sentencing took place amongst a bizarre web of video link-ups. We were technically all meeting in the Alice Springs Supreme Court, though that courtroom was empty bar a few journalists in the gallery (friends in Alice did hold a solidarity vigil outside, which was much appreciated). The prosecutor appeared via a video screen from Darwin; Paulie and Margaret from the court in Cairns; while Justice Reeves and the other four of us were in Brisbane at the Federal Court.
So with all the screens linked up and a Brisbane courtroom packed full, the proceedings began. Justice Reeves amped up the suspense by talking first about the general sentencing principles he applied and all the legal technicalities. When it came time to eventually hand out the sentences, he would preface each one with a long description of our individual circumstances. First he sentenced Paulie – whose trial had ended before ours even began, leaving him hanging in suspense even longer. He was fined $2,000.
Then it moved on to us. The order he did (ascending in ages and criminal histories) indicated the sentences were likely to build up as he went. Franz and Tim were each fined $1,250; myself (for the dual charges of trespass and possessing a photographic device) $2,500. Margaret $3,500. Jim was the one we were worried might be imprisoned, given he has (in Justice Reeves’ count) 27 relevant criminal antecedents. But the judge said he didn’t feel jail time would do any good. Not for the seemingly sensible reasons that jail time rarely does anyone any good, or that Jim in his day-to-day life offers a lot to the world around him that would be missed with him locked up. No, Justice Reeves said he didn’t want Jim becoming a martyr to the cause and increasing the visibility of the protest. So he fined him $5,000 instead.
And that was it. We walked out of the courtroom to the sound of cheers, and once we were done signing paperwork we came outside to a group singing in the rain. The Lurkers’ classic protest anthem Padlock and Chain had been adapted to “who’s got a rattle and flowers?” in tribute to Paulie’s weapons of choice when walking on to the base.
It was definitely a joyous scene outside the court, but what were we celebrating? Was it just that we had stayed out of prison? Well that was a bit of  relief (it certainly wasn’t martyrdom we were after), and I think we deserve some credit for the outcome from the arguments we made through the court case. But as I told the assembled group before we went in, we wanted people to celebrate whatever the outcome was.
We were celebrating the act of resisting injustice in the face of feelings of hopelessness and the potential legal consequences. We were also celebrating the power of community. The little community of peace pilgrims who over the last 15 months have worked together to do the lament, the court case, construct a media campaign, and support each other mentally and spiritually. But also the broader community who were standing outside the court – people from different places with different histories and different abilities; who all work together in some way to build a better world. Some people on occasion trespass on spy bases, some contribute specialist skills, some offer friendship and support. At different times we can all play each of those different roles for one another. And today was just a great example that the lament had given an opportunity to come to life.
So after doing a press conference and milling around in the rain for a while, we headed home and put out an open invite for anyone else to join us. It was a fun afternoon there, hanging out and playing games directed by 8 year old Omar.
What happens now? Well we might get to relax a little bit after a busy last few months. Not being locked up means Tim can return to his homeland of New Zealand, and Jim can see his granddaughter when she takes the same journey in the opposite direction. The fines won’t worry us too much – having taken to heart Jesus’ instructions to give freely and not worry about what we will eat or wear; we mostly live lives unaffected by economic concerns.
Pine Gap has probably been in the news more in the last month through our action than it has in years, despite its omnipresent role in the wars Australia is involved in and in the mass surveillance of computers and phones across the planet. Hopefully our action can be part of a broader campaign to bring into the open what happens there and to challenge it. But that will take more than just a handful of scruffy peace pilgrims.
For us, our lives will mostly go on as per usual. Resisting injustice is a normal and important part of our lives, but doing so only rarely leads us in front of courts and TV cameras. As important as we believe those times to be, mostly it’s in everyday actions that go largely unnoticed. The challenge for us is to keep doing it the best we can using what we have. The invitation we hope to have offered during our brief time in the public spotlight is for people to join us in trying to do the same.
Peace, Andy.

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Trial Day Seven – The verdict

Day seven in the Alice Springs supreme court for the Pine Gap peace pilgrims, with all the evidence done and the jury out considering their verdict. Surely it couldn’t go any longer?
We have been staying at a lovely Christian retreat centre, where among other things they have communal prayers every morning. Today one of our hosts read from the bible about John the Baptist and then played a beautiful song about John’s ministry and his unfortunate end. I’ve always loved the wild desert prophet, but today it had even more significance. Jim spoke about how last time they came out to the Alice Springs supreme court in similar circumstances, they stopped in at the Mt Isa catholic church. The reading that day was the same one, and the story of a voice crying out in the wilderness brought people to tears. We appreciated that again, as well as John’s invitation to repentance a new way.
The jury had been out for four hours yesterday afternoon, but it took less than 30 minutes this morning before we got the call from the judge’s associate. Caught slightly unawares despite the long buildup, we rushed to the court. Margaret got back into her colourful hippy wedding dress she had worn at different key times in the trial.
The jury filed in, and there was a tangible tension in the air. The scene wasn’t quite like the movies though – the judge’s associate had to read out the charge in full for each defendant before getting the verdict, and even after that she read them out again to double check. The whole thing took about five minutes. So though lacking somewhat in dramatic punch, the epic adventure for ourselves and the jury was over. We were all found guilty.
The jury members got up and walked out. It’s odd to spend seven days with people who find out intimate details about us; yet we never actually get to know their names or anything about them. We’ll never know what they thought of us and our actions, though after four and a half hours we can at least assume they took their job seriously. Justice Reeves announced the sentencing hearing would be in three hours and adjourned the court.
One of the good things about doing something completely insane (like representing yourself in the supreme court and pleading not guilty to something you openly admit you did) is that the pressure is totally off. So after the verdict was announced, our demeanour and group dynamic was exactly the same as before – supporting each other, not taking the whole thing too seriously, holding on to a certainty of purpose that stopped us from being blown around by external factors.
The Crown QC called me over to his side of the bench. He told me I was obviously an intelligent and passionate person. He said he didn’t start studying law until he was 30, and he thought if I gave it a go I could have a future as a lawyer. I think he meant it as a compliment. I told him he also seemed like a talented man, and we are always welcoming of new people in the peace movement.
We went downstairs and outside. We grabbed our banners and instruments and performed one last encore in front of the court. It started out with Franz and Margaret’s lament, which as always was very moving, but then we realised people might think we were sad because of the court verdict. So we changed to something more jaunty – the old gospel tune Down By The Riverside, with a few verses updated to make it more relevant to Pine Gap and the age of remote electronic warfare.
Sentencing submissions needed to be prepared; so we did that sitting in the park, only mildly disrupted by various people stopping in to say hello and wish us well. Having already seen the Crown’s submissions for Paulie’s sentencing over a week ago, we weren’t surprised to see them claim we were a great threat to national security and the only appropriate sentence was one of imprisonment. We had already seen Justice Reeves ask on what grounds they could claim this and Mr McHugh squirm behind the bench as he tried to justify it. So we weren’t that worried.
Once we got to the hearing, the prosecution was far less insistent on us getting prison than they had been for Paulie. We handed in the 90 letters asking for clemency the court had been sent from politicians, lawyers, organisations and random strangers. We also had one last bit of courtroom fun arguing against the Crown’s submissions and looking through each others’ criminal records (unfortunately we are going to have to plant a few trees to offset the paper used in this court case; and Jim’s list of prior convictions was one last hefty document).
Justice Reeves helpfully reminded each of us that we could get our sentence somewhat mitigated if we showed contrition for our actions. He got responses varying from “I have nothing to offer on that count”, to “I’m very sorry Pine Gap is still open and committing war crimes”, to Franz quoting Catholic Worker founder Dorothy Day’s immortal line “our problems stem from our acceptance of this filthy rotten system”.
Sentencing was put off until December 4th; by which time the defendants, prosecution and judge will all be back in our various home cities. By the time this trial is over I will have written enough daily blogs to publish my first full length novel. We said thankyou and goodbye to all the court staff, who most of us had seen every weekday for the last fortnight.
One local friend had invited us to eat pizza at the community garden; another (who we met when she was walking past our banners and signs one lunch break) offered to take us exploring some underground caves. So we did both.
Our little sojourn in the red centre has been exhausting, challenging, inspiring and empowering. It’s been a pleasure working on the case with my four co-defendants (now co-offenders, I suppose); but also wonderful to be part of a diverse and beautiful community of people from Alice Springs and across the country that the trial has given an opportunity to come together. It’s not over yet; but whatever happens on December 4th, we will be alright and better for the experience.
Tomorrow we will probably leave town – we all have lives to get back to at home. But before we get on that long straight highway we’ll pay one last visit to the front gates of Pine Gap to remind both ourselves and that institution that one little court case is just a blip in the long struggle that is trying to resist empire and create a more peaceful world.
Peace, Andy.

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Trial Day Six (and counting) – the jury is out

Day six in the Alice Springs supreme court for the Pine Gap peace pilgrims. With all the evidence done and the verdict set to be given, you would be forgiven for thinking we would be getting more nervous. But in fact we were the most rested and relaxed of any morning we’ve had yet – done with the legal arguments and testimonies, we could hand the whole thing over to the jury and whatever other forces are at work.
The first couple of hours in court was Justice Reeves giving directions to the jury and summarising the evidence. Mostly the prosecution’s evidence of course – he told them to ignore all of ours except the bits where we admit to walking on the base. He accepted the jury may feel we are of good character, that we were sincerely acting on our conscience, or that our concerns about Pine Gap are justified. They might even believe the law is unjust or too harsh. But all that counts is whether the prosecution has proved the elements of the law in question. The insinuation was pretty clear.
So the jury went out to deliberate. We had some lunch and waited for the call. It didn’t come straight away, so rather than sitting around in the heat we headed to the local library. It was an unusual, almost surreal feeling flicking through books and CDs there. We’ve been so immersed in the court process for two weeks now, it felt weird sitting there reading a book of gonzo music criticism. After a week of talking about drone warfare, and a morning following the unfolding disaster at Manus Island; I had this uneasy, kinda guilty feeling chilling out in the library.
After four hours, we got a call summoning us to the court. Not for a verdict, the judge’s associate reassured us, they just want to ask the judge a question. We walked in to hear the jury foreperson saying they didn’t think they’d reach a unanimous verdict this afternoon, and one of them had an appointment they had to go to. Justice Reeves said they could go home and come back in the morning. When they turned up for jury duty a week ago I’m not sure they knew what they were up for.
Having left in the morning not knowing if we would come back, it was a strange anti-climax to return to the retreat centre that has been our temporary home. The whole time we’ve been here we’ve been saying once court’s over we’re going to climb that beautiful, ever-present range that is such an iconic part of the landscape here (and also hangs on our dining room wall at home thanks to an Albert Namatjira print I found in an op shop). It might not be over yet, but it seemed the perfect time.
So we set off in the direction of the hill. There was a storm out on the distant horizon, and the afternoon light gave those red desert colours an extra luminescence. I know it’s a cliché to say Alice Springs has some kind of mystical beauty, but when you’re here the words just fall out of your mouth and there’s nothing you can do about it. Of course, it’s also a place of much sadness and struggle, and from the top of the range you can see in the distance the distinctive domes of Pine Gap that have brought us out here.
But as we walked back down the hill and home, the storm came upon us. Usually that might put a dampener on an afternoon bushwalk; but when you’re in causes and circumstances that seem impossible, the symbolism of rain in the desert is just too potent.
Peace, Andy.

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Trial Day Five – Will our defences stand?

Day five in court for the Pine Gap peace pilgrims. It was a tired morning after a big night of preparing legal arguments and joining a local bible study at the gates of Pine Gap itself; but once again we put on our assortment of anti-war t-shirts (except for Franz, who donned a fancy paisley number for the occasion) and headed back to the court.
Yesterday we had said goodbye to a few of the friends and supporters who had come from across the country to Alice Springs for the trial. Unfortunately the trial seems to have outlasted people’s schedules! Today we said goodbye to a few more. But we got a boost of solidarity from Brisbane, where birdwatchers reported sightings of a flock of black cockatoos roaming the city handing out flyers about Pine Gap!
Having completed our evidence yesterday afternoon, this morning opened with the court voir dire (that means without the jury – you learn all kinds of legal jargon doing this stuff) while we debated whether our defences would be allowed for consideration by the jury. Basically, the way it works is this: pleading not guilty in court, you can either claim you didn’t break the law; or that you did but had a legal reason to do so – eg in response to a sudden extraordinary emergency or in defence of others. This is what we were going for.
The morning started slowly as the prosecution argued why our defences should not be allowed using lots of case law precedents from Australia and the UK. My personal highlight of this less than thrilling episode was when the precedent was raised of Dave Burgess and Will Saunders painting “NO WAR” on the Opera House in the first week of the Iraq war in 2003. The judge back then ruled against them and actually gave a prison sentence; which is why they were mentioned today by the prosecution. But in any circumstances, it is an honour to be compared to such an iconic action.
With two barristers, three solicitors and the commonwealth public interest specialist up against five anarchist peace activists; the odds were stacked against us when it came time for the legal stoush. But the ability of a small but determined group of people should never be underestimated, and so it was that Margaret presented everyone with a masterpiece in the art of lay law. Margaret has grown more exhausted, stressed and sick as the trial has progressed, and at this point can hardly speak due to a sore throat. Yet this morning she stood up and with supernatural power was arguing case law examples, legal elements and subsections, taking on each point of the prosecution argument. It was magnificent, a kind of performance that rarely is summoned in the day-to-day life of a mum, social worker and activist. As a final dramatic flourish, she emphatically folded her notes and sliced open her thumb with a papercut. But seriously, she was amazing.
Justice Reeves retired to consider his decision while we retired to the park for lunch. When he returned, it was to announce the disappointing but not entirely unexpected news that he would not allow our defence.
And so the jury was led back in for the closing addresses. The prosecution’s was a plain restating of the facts in Mr McHugh’s very dry, one-hand-in-the-pocket, gesticulate-with-glasses manner we are by now so familiar with.
Ours’ were much shorter, as you would expect given we had just been told all our evidence was effectively invalid. In our own way we each appealed to the consciences of the jury; telling them to evaluate the facts and take the action they felt necessary, the same as we had. Margaret finished with a quote from the closing statement her late husband Bryan Law had given in court a decade ago after similarly trespassing on Pine Gap.
Tomorrow the jury will receive their final instructions then make their decision. If it is guilty, we could face sentencing in the afternoon. So if there’s no court blog tomorrow, you can probably hazard a guess as to why. But you can be sure that none of us regret taking the action that we did for peace, or regret representing ourselves in court. It has enabled us to present ourselves to the court, the Pine Gap staff, the jury and the world as we are – a group of five friends with nothing to hide, who in our words and deeds hope to point the way to a world of new possibilities.
Whether we wind up in the clink or not, that struggle for a better world will go on in our hearts, our relationships, and how we respond to injustices on a systemic scale. Sometimes the struggle involves lament, sometimes celebration. Sometimes it is mundane, sometimes dramatic.
That last sentence is also a good description of court; but the jury, after five days of experiencing both those extremes and plenty in between, tomorrow will have to work out between them whether we are guilty or not.
Peace, Andy.

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Support the #PineGapPilgrims

We were lamenting war and praying for peace at Pine Gap. We have been found guilty of "being" in a prohibited area, and await sentencing. Now we need your help and support:
  1. To get involved sign up for Wage Peace Newsletter for updates, invitation to actions, call outs. Also to halt the march of the military in our universities and communities. Share this information with your friends and networks.
  2. Donate to help us with the costs of travelling back from Alice Springs and general costs that we incurred fighting this case.
  3. Support us with Actions in Alice Springs, Brisbane and Cairns on December 4th when we will be sentenced in the Brisbane Federal Court