Citation: R v Burgess; R v Saunders [2005] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 23 February 2005
Judges: Adams J; Hislop J; Newman AJ
Background
Two appellants, aged 34 and 43, were convicted in the District Court of maliciously damaging property under s 195(a) of the Crimes Act 1900 after they painted the words "No War" on the tiled sails of the Sydney Opera House on 18 March 2003. The painting was admitted to be intentional and to constitute damage. Each appellant received a fixed sentence of nine months periodic detention and was ordered to pay compensation of $111,000 (in addition to $40,000 already paid) to the Sydney Opera House Trust.
At trial, the appellants argued they were entitled to rely on the statutory defence of self-defence or, more precisely, defence of others under s 418 of the Crimes Act. Their case was that the act of painting was a response to the announcement that Australian forces would be committed to the Iraq War, and that they acted to prevent imminent loss of life and injury to others. The trial judge, Blackmore DCJ, ruled after a voir dire (a hearing to determine whether evidence or a legal argument is admissible before the jury) that this material did not justify leaving either self-defence or the question of malice to the jury.
The appellants appealed against both their convictions and their sentences. Leave to appeal against sentence was also sought.
Legal Issues
- Whether the trial judge was correct to exclude the defence of self-defence (or defence of others) from the jury's consideration, in circumstances where the damage was inflicted on the property of an innocent third party rather than against the perceived threat.
- Whether the appellants' conduct could properly be characterised as a "reasonable response in the circumstances as he or she perceives them" within s 418 of the Crimes Act.
- Whether the sentences imposed were manifestly excessive, and whether the sentencing judge gave sufficient weight to the payment of compensation as a mitigating factor.
Decision
On the conviction appeal, the Court of Criminal Appeal upheld the trial judge's exclusion of the self-defence direction. The court confirmed that self-defence under s 418 requires the defensive conduct to be directed at the source of the perceived threat. Here, the Sydney Opera House and its Trust had no connection whatsoever to the entity against whom the appellants claimed to be acting defensively.
Adams J examined the language and structure of s 418 and the relevant authorities, concluding that the provision does not extend to a situation where an accused damages the property of an innocent third party in order to protest against or deter the conduct of an entirely unrelated party. The section requires a direct nexus between the defensive act and the threat being responded to.
Newman AJ, agreeing with Adams J, added a separate observation on public policy grounds. He reasoned that extending self-defence to cover attacks on innocent parties, justified by reference to a threat from an unrelated third party, would be contrary to the common law's historical approach and fundamentally unacceptable as a matter of justice and community standards.
On the sentence appeal, the court found no error in the sentences imposed. The court noted that payment of compensation can be relevant to mitigation, particularly where it represents genuine hardship, but concluded that the sentencing judge had taken compensation into account and had not given it insufficient weight in the circumstances of this case.
Orders Made
- Appeals against conviction dismissed.
- Leave to appeal against sentences granted.
- Appeals against sentences dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that the statutory defence of self-defence under s 418 of the Crimes Act 1900 requires the defensive conduct to be directed at the actual source of the perceived threat, not at the property of an unrelated innocent third party.
- A claimed belief that action is necessary to prevent harm to others does not bring conduct within s 418 where there is no direct connection between the target of that conduct and the entity said to pose the threat.
- In dismissing the conviction appeals, the Court drew a clear distinction between a political protest and a legally cognisable act of self-defence or defence of others.
- Where compensation has been paid by a convicted person, it may constitute a mitigating factor, particularly where payment involved real financial hardship. However, the weight given to it remains a matter for the sentencing judge, and an appellate court will not intervene unless the sentencing judge's approach involved error.
- No error was established in the trial judge's decision to rule on the availability of self-defence before the matter went to the jury, a procedure designed to confine the evidence and issues to those genuinely in contest.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 194, 195(a), 418, 422
- Criminal Appeal Act 1912 (NSW) s 5F
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(1)
- International Criminal Court Act 2002 (Cth)
- Model Criminal Code
Cases:
- Jones and Milling & Ors v Gloucestershire Crown Prosecution Service [2004] EWCA Crim 1981
- Packett v The Queen (1937) 58 CLR 191
- Palmer v The Queen [1978] AC 814
- R v Cinous [2002] 2 SCR 3
- R v Howe (1958) 100 CLR 448
- R v Katarzynski [2002] NSWSC 613
- R v Marshall (unreported, NSWCCA, 17 July 1990)
- R v Muratovic (1967) Qd R 15
- R v Phillips and Pringle (1973) 1 NSWLR 275
- R v PRFN (unreported, NSWCCA, 21 June 2000)
- Rogers (1996) 86 A Crim R 542
- Viro v The Queen (1978) 141 CLR 88
- Zecevic v DPP (Victoria) (1987) 162 CLR 645