Thursday 24 May
Defence counsel gave written and oral submissions in support of “no case” applications for almost all charges against the 16 defendants.
Stewart Bayles told the Magistrate that he had been unable to locate any authorities that relate to the criminal charge of beset. There had been civil proceedings under the tort of nuisance in cases including Animal Liberation, Dollar Sweets, and McCoy Constructons, with the Dollar Sweets case in particular turning on when a picket line became a nuisance.
The dictionary definition beset includes one of “surround with hostile intent”, Mr Bayles said. To satisfy the criminal charge of beset, the premises must be beset, for the purpose of and with the effect of, “obstructing hindering or impeding” access to or from the premises.
To beset premises, argued Mr Bayles, there must be some elecment of surrounding the premises. This clearly did not apply in this case. Police had set up lines in Red Cape Lane and outside the Max Brenner store. Even outside the Max Brenner store in QV Square, it was evident from the CCTV footage and from testimony that access was not blocked by the protestors but in fact by the police line.
At least one part of the protestors’ line, near the northern end of QV Square, was no more than a loose collection of protestors through which members of the public could, and on several occasions clearly did, proceed. Evidence had also been given that anyone could access Red Cape Lane towards Max Brenner if allowed to do so by police.
Civil cases talk about intimidation, but there was no evidence that any member of the public was intimidated.
Peta Murphy made a submission regarding the charges of trespass. She stated that the prosecution case for trespass had proceeded on a misapprehention, as QV as a matter of fact or law do not have the authority to demand that a person leaves a public place, unless that person is a wilful trespasser. Ms Murphy argued that QV cannot, in the words of Operations Manager Mark Appleford, require people to leave because they are “demonstrating disapproval of the political or social interests of a retail tenant”.
That QV is private property is correct but not relevant to this matter, Ms Murphy submitted.
The relevant section of the Summary Offences Act distinguishes between private places, scheduled public places (effectively private places), and public places. A person cannot be denied entry, required to leave, or have conditions placed on entry to a public place unless that person is already wilfully trespassing.
As a matter of Law, Ms Murphy submitted, QV is a public place, with the Section 173 agreement with Melbourne City Council providing an additional element.
The demand of Mark Appleford for protestors to leave QV was not capable of transforming people from members of the public into wilful trespassers, in the submission of Ms Murphy. An announcement that someone in a public place is pursuing a political protest does not make them a wilful trespasser. A person must be in a public place with the intention to commit a criminal offence, in order to be declared a wilful trespasser.
Ms Murphy further submitted that, if a private property owner of a public place can declare someone a wilful trespasser simply because of their expression of a political belief, this falls foul of the Victorian Charter of Human Rights and Responsibilities, specifically clauses 15 and 16, that relate to freedom of expression and peaceful assembly.
Interpretation of the Charter is a “live issue”, said Ms Murphy, but there is an important question: Is the owner of a pubic space having an unbounded power to limit exression of unwanted political beliefs, compatible with human rights.
The police decision to arrest for trespass was based on Mark Appleford’s announcement that the protestors were expressing political opinions that we don’t like, therefore your license to be here is being withdrawn.
Ms Murphy quoted the view of UK Lord Justice Sedly: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”
Freedom of expression, noted Ms Murphy, is not unbounded. And if a person is in a public space with a criminal intent, they can be asked to leave. But can a person can be rendered a wilful trespasser in a public place by an announcement of disagreement with the political expression taking place? Ms Murphy agued that it can’t be argued that this is the purpose of section 9.1.d of the Summary Offences Act.
What was occuring on 1 July at QV was not a threat to public order that would justify the withdrawal of a person’s license to be in a public place, Ms Murphy submitted.
Mr Bayles in a further submission discussed the tactics used by the police on the night, with five or six or seven police officers arresting a single protestor, and the “human response” to that tactic from individual protestors.
Much turned on the legality of the initial arrests, especially of Vashti Kenway, where Mr Bayles, drawing on Ms Murphy’s submission, argued that elements of the offence of trespass were not made out. Mr Appleford was clearly inaudible. This fact and points of law meant that Inspector Beattie “could not have held a belief on reasonable grounds” that the arrests were lawful. Police can act in good faith, argued Mr Bayles, but a court can still find that there were not reasonable grounds for an arrest.
Even if the arrest of Ms Kenway was lawful, argued Mr Bayles, there is the question of excessive force.
Mr Bayles’ client, Omar Hassan, is charged with resisting Sergeant Balthazar. Mr Bayles submitted that, according to Balthazar’s testimony, he did not see Mr Hassan being punched by Constable Rodwell. Sergeant Balthazar came upon Mr Hassan just after Mr Hassan had been punched. How could you ever say, asked Mr Bayles, that the immediate reaction to a punch constitutes resistance to a police officer in the lawful execution of their duty.
Resisting, concluded Mr Bayles, is a mens rea offence – it is not just doing the acts that constitute resistance, you have to be intending to resist a police officer in the lawful execution of their duty. How could this court ever be satisfied that this is what Mr Hassan was doing, as opposed to a normal immediate reaction to being punched.
Mr Hughan supplemented the submissions, noting that in the second reading speech for the section of the Summary Offences Act including “beset”, Victoria’s Acting Chief Secretary Ian Smith declared in 1970 the law was aimed at individuals or groups who “occupy or make impasable any premises or place for any other person to enter to conduct lawful business”.
Mr Hughan also addressed the trespass charges, noting that QV had plainly taken the view that they could do anything they want because it is private property. In fact QV is private property subject to conditions, including the Section 173 agreement that specifies that QV has to keep lanes and QV Square open in a manner “reasonably analogous” with comparable lanes and squares in the Melbourne CBD.
Mr Hughan submitted that QV management and the police “just don’t have the power to do what they did”, and that the actions of QV and the police were unlawful.
Ms Murphy made a futher submission on the charges of hinder and resist against her client, Thomas Tymms. The prosecution opening had stated that Mr Tymms had refused to get on the ground, had pushed on police lines, and had waved his arms around. However no evidence whatsoever had been led to indicate that Mr Tymms did this.
Ms Murphy submitted that any action by Mr Tymms was a protective reaction as Sergeant Richards (who stated his weight at 107kg) and other police rapidly approached Liz Walsh to arrest her. The arrest of Ms Walsh could not be a legal arrest. The level of force used must correspond with the level of force required in each instance, not on what other people in other places had done.
Ms Murphy submitted that descriptions of what “the protestors” may have done is never evidence against her client – no evidence had been led as to when he entered QV Square or how he entered. Finally, if QV had gone to the Melbourne City Council to amend the Section 173 agreement, Melbourne City Council would have been obliged to look at the Charter of Human Rights.
Moya O’Brien adopted the submissions of other counsel, and went on to argue: There is no evidence that her client, Vashti Kenway, had heard the announcement of Mark Appleford. The widely quoted short speech of Ms Kenway, stating that “we’re not going to leave”, referred to a “police line trying to drive us out of here”. In other words it was not a direct response to Mark Appleford or an acknowledgement of his statement. In any case the “reasonable time” given to her client to leave was only 2 minutes and 26 seconds.
Mr Naughton submitted that the police were under a misconception on the night of the protest. It was easy to understand why, as QV had not informed the police of the Section 173 agreement covering QV. This meant that members of the public had a right to access the area unless and until that right had been lawfully restricted, which had not happened in this case.
Mr Naughton also submitted that footage from the night had showed a member of the public vigorously arguing their case with protestors for quite some time. To criminalise a protest such as this was not in keeping with the law, with the Charter, or with the sort of society in which we live, he argued.
Various other counsel made representations concerning their clients’ individual charges.