Protest on Trial: Day 15 Prosecution responds to no-case submission

Friday 25 May

Mr Howard for the prosecution submitted a 28 page written submission to the Magistrate, rebutting elements of the “no case” submissions of the defence the previous day. He declined to give an oral submission, beyond stating that the prosecution case was not inherently weak and all elements of the defence were addressed.

After a break, the Magistrate, Mr Garnet, asked Mr Howard about the beset charge, in particular the Swanston St end of Red Cape Lane where there was a police line but no presence of protestors. Mr Howard that the protestors were manifestly responsible for the blocking of Red Cape Lane, “albeit by police members”.

The Magistrate asked a further question, saying he could accept that the police had valid operational reasons for blocking Red Cape Lane, but if to beset involves surrounding a building, there was “no evidence that the protestors were surrounding or barricading Red Cape Lane at Swanston St”. Mr Howard replied asking what police members were to do, as they had to block off the lane to deny protestors access.

Part of the written submission of Mr Howard was that the busines operations of the store were altered as a result of the protest. The Magistrate asked whether altering the business operations rather than ceasing them is sufficient for the charge of beset. Mr Howard replied that the business operation of the store was obstructed, hindered, and impeded.

The Magistrate asked about the Section 173 agreement, section 5.4 of which gives QV the control care and management of the area, including of traffic, “subject to the rights of the Council.” Mr Howard replied that QV had to manage the area “in a proper and safe manner”, and that was impossible “with such issues afoot”. The covenants governing QV set out “a general objective” which cannot be achieved 365 days a year, which is why it is left to QV to manage. Mr Howard further argued that, even if Mr Appleford was inaudible in making his announcement, the police had been authorised by the owner and occupier to act on their behalf.

Peta Murphy made a further submission in response to Mr Howard’s written submission. In relation to section 9.1.d of the Summary Offences Act, the prosecution had used a version that referred to “any place” rather than the amended version that refers to “any public place”. In Ms Murphy’s submission, Mr Howard conflated what is a wilful trespasser with how one becomes a wilful trespasser, and with the warning given when someone is a wilful trespasser.

Part of the prosecution’s written submission was that the accused were “acting in conert” in the offences committed. Ms Murphy stated that there had been no discussion of acting in concert by the prosecution, and when the question of such an approach was raised in a preliminary hearing, the prosecution had declared that they were not proceeding on such a basis, but rather that the charges would be proved for each individual.

Mr Bayles said the issue of the lawfulness of the arrests, in particular of Vashti Kenway, had not been addressed by Mr Howard’s submission. These issues could be approached as a global issue relating to the police actions to commence arrests, and the lawfulness of this exercise in police authority. Alternatively the individual acts committed by police and the “reasonable grounds” they had for these acts could be investigated.

Ms O’Brien objected to the chronology presented by Mr Howard in relation to her client, Vashti Kenway. The chronology states that after Ms Kenway had been pushed to the ground she addressed the crowd, and certain words are quoted. The quote is correct, submitted Ms O’Brien, but in fact Ms Kenway did not address the crowd at this point.

Mr Naughton submitted that any blocking of Red Cape Lane could not be sheeted home to his client or to any of the co-accused.

The Magistrate Mr Garnet reserved his decision. He will hand down his decision, with reasons, on the “no case” submission at 9am on Monday 23rd of July.

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