Monday, 27 August 2012

Lane, beset and Max: public protesting apparently permitted

The Magistrates' Court announced on twitter this week that the DPP decided to not appeal the 23 July 2012 decision dismissing trespass charges against protestors at Max Brenner's chocolate bar in Melbourne from 1 July 2011. (The decision is available on the Magistrates' Court website here.)

So, what's the effect of all this?

Well, the first thing to note is that, pedantically, the decision doesn't create a precedent, because the doctrine of precedent provides that decisions made by courts bind inferior courts in the same hierarchy: Broome v Cassell & Co Ltd [1972] AC 1027 at 1054; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107.

And after reading the decision, I'm not so sure it's quite the green light that some folks claim, or a sudden recognition of the right to public protest. There are several appellate cases that endorse a right to political protest, albeit subject to limitations, such as Coleman v Power (2004) 220 CLR 1, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, Melbourne Corporation v Barry (1922) 31 CLR 174, Commissioner of Police v Allen (1984) 14 A Crim R 244, Commissioner of Police (NSW) v Gabriel (2004) 141 A Crim R 566.

Apparently the protest was organised by BDS, targetting the Max Brenner chocolate chain as a supporter of Israel or Isareli interests. (See more on the BDS website here.)

The protest took place at the QV Melbourne, a shopping complex built on the remnants of the old Queen Victoria hospital at the corner of Swanston and Lonsdale Streets.

The police arrested a number of people at the protest, and charged 16.

All were charged with:

  • besetting premises, contrary to Summary Offences Act 1966 s 52(1A); and
  • wilful trespass, contrary to Summary Offences Act 1966 s 9(1)(d)

Eight of those accused were also charged with resisting or assaulting police in the execution of their duty, contrary to Summary Offences Act s 52.

At the close of the prosecution case, all accused submitted they had no case to answer.

The magistrate agreed with that on the besetting and trespass charges, but not for all of the resisting police charges.

Besetting premises

There are surprisingly few reported criminal cases on this offence. Most of the cases seem to be civil ones, and — unsurprisingly — they all dealt with picket lines at industrial disputes. (There's an extremely useful book discussing besetting as a sub-species of the tort of nuisance: Dealing with demonstrations by Roger Douglas, at pp 96 - 98.)

The cases the Magistrates' Court considered were Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383, Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 and DPP v Fidler [1992] 1 WLR 91. Douglas' book adds Barloworld Coatings (Aust) Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union [2001] NSWSC 826. For good measure, I reckon R v Commissioner of Police; Ex p North Broken Hill Ltd (1992) 1 Tas R 99, 61 A Crim R 390 — dealing with the Associated Pulp and Paper Mill picket — is probably relevant too.

The gravamen of these cases is that besetting involves notions of physically or forcibly preventing access to premises.

Here, folks were walking in and out of the shop, and apparently past and through the protestors, until the police formed lines across Red Cape Lane, turning back the public from going east in the lane to the shop.

In this case, the Court found on the evidence that the true cause of preventing access to the Max Brenner shop was not the protestors, but rather, the police lines set up to oppose the protestors, at [36] – [40] of the decision.

Wilful trespass

The offence of wilful trespass contrary to Summary Offences Act s 9(1)(d) relevantly provides:

Any person who wilfully trespasses in any public place other than a Scheduled public place and neglects or refuses to leave that place after being warned to do so by the owner occupier or a person authorized by or on behalf of the owner or occupier shall be guilty of an offence.

The police distributed notices purporting to prohibit entry to QV Melbourne for demonstrating, and QV management placed signs around QV Melbourne purporting to prohibit entry to people who intended to demonstrate or obstruct any tenants' premises.

The QV Melbourne site was owned by Commonwealth Management Investments Ltd and Victoria Square QV Investments. It was managed by Colonial First State Property Management Pty Ltd, trading as Colonial First State Global Asset Management.

Even though it was privately owned property, it still had the character of being a public place as defined in s 3.

But...unbeknownst to the police, the property was subject to an agreement between the owners and the Melbourne City Council in accordance with Planning and Environment Act 1987 s 173. That agreement contained a covenant obliging the owners to keep the laneways and QV Square open to the public 24/7.

At [53], the Court held that the effect of the covenant was that QV's owners and managers could not lawfully apply conditions on the entry of members of the public to the site.

Additionally, the Court held that the protestors had a lawful right to protest in accordance with the Charter of Human Rights and Responsibilities Act 2006 ss 15 and 16, and that the nature of the protest did not justify limiting that right under s 7.

Last, at [74], the Court held the prosecution could not establish the protestors could hear the police direction to leave or face arrest, and that the charge failed for that reason too. I'm not so sure about this one, at the no-case state, when it seemed arguable at least that the protestors had a fair inkling what the police were telling them, and the protestors were seemingly making a lot of noise to avoid hearing it. (Wilful deafness?)

Resisting or assaulting police

The Court referred to Crimes Act 1958 ss 458 and 461, emphasising that where police believe it is necessary to arrest someone, and that belief is reasonable, the arrest won't be unlawful (or will still be lawful) even if the suspected person is later found to have not committed the offence.

The Court also considered the use of reasonable force, citing Woodley v Boyd [2001] NSWCA 35, Lindley v Rutter [1981] QV 128 and McIntosh v Webster (1980) 43 FLR 112 — but curiously, not to Crimes Act s 462A. In some instances, the force used by the arresting police was excessive, and as a result some charges of resisting police failed at the no-case stage. (For example, at [93].) On other charges — such as at [98], the Court found there was a case to answer for allegations such as throwing a punch at a police officer, and at [99] for bear-hugging another protestor to prevent arrest, and [100] - [103], struggling to prevent arrest.


On the facts in this case, it seems difficult to find fault with the Court's findings on the besetting charges. Those charges are probably better suited to ones where the protestors are in control of access points — such as in a traditional picket — and much less likely to succeed as here, where the police have the numbers to physically block access to places. I can imagine why the police would want to stop conflict between protestors and members of the public (or in other scenarios, between rival protestors), but I reckon they would always struggle succeeding with the charge of besetting premises in those situations.

The wilful trespass charge is less certain IMO. There are cases dealing with the right of occupiers or people authorised by occupiers to rescind a licence to enter or remain on property, such as O v Wedd [2000] TASSC 74; Bethune v Heffernan Heelan v Heyward [1986] VR 417, but I don't think they would have helped here because of the covenant on the property. Could the Melbourne City Council have restricted entry, or even the police, given the fundamental public character of the property? Probably not I suspect.

It could be open to the police to rely on the common-law breach of the peace provisions, or the move-on powers in the Summary Offences Act, but they have their own difficulties too, as I mentioned here, and more recently, discussed by Charon QC here (and see the judgment here).

Probably unless and until Parliament sees fit to legislate on this area, we won't know until any particular case is decided at court. Don't hold your breath though: we're still waiting for the IBAC to get off the ground 13 months after it was scheduled to start operation.


Jeremy Gans said...

I'm not sure you captured Garnett's key reasoning on trespass. The main significance of the s173 covenant was to make it clear that the relevant sub-para of s9(1) applicable to the site of the protest was s9(1)(d) (see [48].) And that in turn meant that the protesters could only be guilty of trespass if they 'wilfully' trespassed into the square. Garnett, applying the Charter it seems, held that (at least in the case of people who were planning to exercise a Charter right), 'wilfully' requires an intent to commit a crime at the time of entry. Given that there was no proof of any such intent in this case, that was enough to defeat the trespass charges.

The various statements from officialdom to the protesters only matter if that conclusion is wrong. On the signs purporting to bar anyone planning to express political or social disapproval of a retail tenant, Garnett seemed to rule in the middle of [64] that such a condition was unlawful under the Charter (maybe applying s38 and the treating the QV corporation as a functional public authority?) I'm not sure s173 mattered to this conclusion. It gets mentioned again at [70], but that seems to be a general summary.

I initially shared your qualms about the 'wilful deafness' point, but changed my mind after looking through some of the YouTube footage (search 'max brenner qv protest', but make sure that you're looking at the July 2011 demo.) The 'neglects or refuses' wording in 9(1)(d) pretty clearly requires proof of some sort of mens rea, rather than some sort of deemed knowledge. Maybe some of the protesters knew what was going on, but I doubt that most of them did.

Sure,this isn't a precedent. But I think the reasoning is sound and that, especially given the CCTV evidence, the acquittal would have been affirmed on appeal. If the legislation remains unaltered and police and prosecutors don't rethink their approach to protests in public retail areas, they're asking for trouble.

Jeremy Gans said...

PS: the statutory move on power can't ever be used on protesters: see s6(5)(b).