Sally Ann Denise Watson v Robin Laurence Trenerry [NTR]

• Jurisdiction: Northern Territory
• Judge: Angel J,Mildren J,Gray A/J
• Judgment Date: 26 May 1998
• Docket Number: FILE NO: AP25 of 1997 and
• Date: 26 May 1998
• Court: Supreme Court

Between:

Sally Ann Denise Watson

Appellant

and

Robin Laurence Trenerry

Respondent

Between:

Vaughan Lewis Williams

Appellant

and

Robin Laurence Trenerry

Respondent

(1998) 122 NTR 1

Judgment of:

Angel, Mildren JJ and Gray AJ

FILE NO: AP25 of 1997 and

FILE NO: AP26 of 1997

COURT OF APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Criminal law — disorderly behaviour — what constitutes.

Per Mildren, J. — observations on right to free speech, and right of protest as legitimate form of political expression.

Melser and ors v Police [1967] NZLR 437 referred to. Barrington v Austin and ors [1939] SASR 130 approved.

Appeal from Watson and Williams v Trenerry, unreported, 3 October 1997).

Summary Offences Act (NT) s47(a)

Criminal Code (NT) s31.

REPRESENTATION:

Counsel:

Appellant: Mr A Wyvill

Respondent: Mr T I Pauling QC and Mr G Nicholson

Appeal allowed.

REASONS FOR JUDGMENT

1 (Delivered 26 May 1998)

Angel J

2 On the morning of 7 December 1995 there took place on the footpath and carriageway of Harry Chan Avenue in Darwin a protest to mark the twentieth anniversary of the Indonesian occupation of East Timor. The protest took place outside the two metre iron railing fence of the Indonesian Embassy. Each appellant was charged with an offence that in the course of the protest they behaved in a disorderly manner in a public place, namely Harry Chan Avenue, contrary to s47(a) Summary Offences Act. On 31 January 1997 each appellant was found guilty as charged. Each appellant appealed from the decision of the learned magistrate. The appeals were heard by Martin CJ who dismissed each appeal on 3 October 1997.

3 In dismissing the appeals the learned Chief Justice said:

‘His Worship's finding was objective, being made in the light of all the circumstances as found by him. I do not consider that he erred. Waving burning flags in the vicinity of others and setting a fire on a public street in the circumstances proved, have the required tendency and were acts sufficiently serious to justify the application of the criminal law.

I am unpersuaded by the appellant's claims to immunity upon the basis that what they did was in the course of political protest. Political protest of this type has a tendency to disturb the peace. Neither the protesters' views as to the righteousness of their cause nor as to the appropriateness of their actions can make what is unlawful lawful. Motive is irrelevant.’

4 The constitutional arguments before this Court aside, each appeal turns, not on a point of law, but on a conclusion of mixed law and fact to which this Court is brought by undisputed facts. The question in each appeal is whether the admitted conduct of the appellant is sufficiently disorderly to be in breach of the statute which is in each case a question of degree, see per Turner J, in Melser and Others v Police [1967] NZLR 437 at 444.

5 Before turning to the learned magistrate's reasons to ascertain the relevant findings it is necessary to understand the narrow confines of the appeals. The appellants were charged severally. The impugned conduct attributed to each appellant was the conduct of each appellant individually. When called upon to provide particulars of the behaviour said to be disorderly the prosecutor did not say either appellant was allegedly responsible for the acts of others. The complaints made no reference to s8 (Offences committed in prosecution of common purpose) or s12 (Abettors and Accessories before the fact) Criminal Code. Those matters were never mentioned at the trial. The appellants, who were conducting their own defences, were never told that they were to be held responsible for the actions of others or of the group. Each appellant conducted his and her defence on the basis their individual behaviour was in question. It was not part of the prosecution case that they were involved in some joint enterprise or that they acted in concert or had aided or abetted each other or any other participant in the protest. In the course of the protest some flags were burned. Whilst the burning of the flags may have constituted some symbolic speech or statement directed towards the Indonesian Embassy it was no part of the prosecution case that any statement or insult constituted thereby formed part of the prosecution case. It was not part of the prosecution case that it was unlawful to light a fire in a public place or on a roadway. It was not suggested that some permit was required by the appellants to do what they did. They were not shown to have consciously disobeyed a known police instruction. Nor was the assembly on Harry Chan Avenue said to be an unlawful assembly; indeed the learned magistrate expressly found the occasion to be a lawful one. Whilst there was some evidence of hindrance to traffic occasioned by the assembly, that formed no part of the prosecution case. Neither appellant was said to have obstructed the public use of Harry Chan Avenue in contravention of s59(1)(d) of the Control of Roads Act (NT). The prosecution case before the learned magistrate and as argued before this Court was that each appellant had committed the offence of disorderly behaviour by holding aloft a burning flag, that is all, whilst standing in a circle with other participants who also held burning flags. There were twenty flags in all, one to mark each year of the anniversary of the Indonesian occupation of East Timor.

6 The learned magistrate found that what he called ‘the incident of the flag burning’ occurred after what the learned magistrate called ‘the circular and oval parade’. Twenty flags, soaked in kerosene, were distributed amongst members of the gathering (including the appellants). The flag holders paraded in a circular fashion across Harry Chan Avenue from one footpath to another. In the course of that parade they draped the flags along the ground and at times held them aloft. Thereafter one flag was set alight. The holder of that flag and the identity of who set it alight are unknown. The other flag holders, including the appellants, lit their flags from the burning flag and stood in a circle with the burning flags held aloft and pointing towards the centre of the circle. After thirty seconds or so the burning remnants were dropped or tossed on the carriage-way about one metre or so from the curb side adjacent to the Indonesian Embassy. All this occurred in the presence of Police who were present by pre-arrangement with the organisers of the protest and in the presence of a Fire Brigade Unit which was present by prearrangement with the Police. The Fire Brigade extinguished the pile of burning remnants of the flags on being directed to do so by the Police. Protesters then cleaned up the mess.

7 There was a parked vehicle in the vicinity of this theatre and the learned magistrate found there was no danger to the vehicle. The learned magistrate said:

‘There was certainly great heat produced from the fire and all constables avoided the thing by stepping back when they were first ignited and as they went up in flames, being some distance off the ground, the flags burning emitted a great deal of heat and persons could have been burned if they had not then disbanded the little group and stood individually until such time as the conflagration had consumed the flag or even half consumed the flag and then they got rid of it by tossing them in a pile’.

8 The learned magistrate said

‘… there was no great animosity between the protesters and the police … there was a spirit of cooperation by the protesters certainly at the beginning and certainly at the end … generally, the police interfered as little as possible. They were all around and when they could do nothing, well, they just observed and when I say “they do nothing”, that was the question of whether or not to disarm the folk who were carrying the flags and they decided the man power was insufficient … no arrests were made on the spot’.

9 The learned magistrate held that there was no evidence of interference with passers by. He said there was some potential danger and that there was assumed risk by the protesters to themselves. He said:

As for the parading and the interference with the motor vehicles, I am not satisfied that that was disorderly. Interference was slight. There was obedience. There was a resumption of parading but there's no indication to me that any kind of order which was given was an order which was total, irrevocable and required them to depart. I am not satisfied that the parading was of a disorderly nature at all.

As one might feel as a motorist when going past the Sydney Cricket Ground or the Melbourne MCG when everyone is coming out and you are trying to get out of the park, you have just got to take it as it comes and that is a lawful; this was a lawful occasion. There's no evidence whatsoever that this was a band (sic) of protest. No evidence whatsoever. So that I do not find as being disorderly.

What might have been disorderly might have been the angry demonstration of the Timorese folk. I mean it is peripheral to this and it is not part of any kind of particulars that involve these ….. defendants. I am quite satisfied that the burning of the flag by every standard — the burning of the flags by every standard was disorderly conduct. I am satisfied that Ms Watson and Mr Vaughan Williams took part in that and they are found guilty of disorderly conduct.’.

10 I have previously cited what the learned Chief Justice had to say about the learned magistrate's finding. I am, with respect, unable to agree with what the Chief Justice has said. There was no evidence or finding by the learned magistrate that either appellant had waved a burning flag in the vicinity of others. There was no evidence or finding by the learned magistrate that either appellant...