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Court of Criminal Appeal 23 February 2005

BURGESS; R v SAUNDERS v R

[2005] NSWCCA 52

Also reported as (2005) 152 A Crim R 100
Theft & property
CONVICTION APPEAL DEFENCE OF ANOTHER DISTINCTION BETWEEN PROTEST AND SELF DEFENCE ROLE OF JUDGE WHETHER DEFENCE RIGHTLY EXCLUDED

Citation: R v Burgess; R v Saunders [2005] NSWCCA 52
Court: Court of Criminal Appeal, New South Wales
Date: 23 February 2005
Judges: Adams J; Hislop J; Newman AJ

Background

Two appellants 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 one of the iconic white-tiled sails of the Sydney Opera House on 18 March 2003. The act was deliberate and admitted. The painting caused significant damage, ultimately costing over $150,000 to remediate.

At trial, the appellants argued they were acting in defence of others under s 418 of the Crimes Act 1900. Their case was that Australia's imminent commitment of armed forces to the Iraq War would cause death and injury to people in Iraq and increase the terrorist threat to Australians, and that their act was a necessary response. The trial judge, Blackmore DCJ, ruled after a voir dire that self-defence could not be left to the jury, and the appellants were convicted. They also argued their conduct was not "malicious" within the meaning of s 194 of the Act.

Each appellant was sentenced to nine months' imprisonment by way of periodic detention and ordered to pay $111,000 in compensation to the Sydney Opera House Trust (in addition to $40,000 already paid). They appealed against conviction, sentence, and the compensation order.

Legal Issues

  • Whether the trial judge erred in withdrawing the defence of self-defence (or defence of others under s 418 of the Crimes Act 1900) from the jury.
  • Whether the appellants' conduct was done without "malice" within the meaning of s 194 of the Act, including by reason of a claimed right under the International Criminal Court Act 2002.
  • Whether the sentence of nine months' periodic detention was excessive, having regard to the appellants' motives, good character, and payment of compensation.
  • Whether Blackmore DCJ erred in failing to set a non-parole period as required by s 44(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the compensation order was excessive, including whether the Opera House Trust had failed to mitigate its loss.

Decision

Issue 1: Withdrawal of self-defence from the jury

Adams J confirmed that a trial judge has both the power and the responsibility to assess whether evidence is capable of raising each element of self-defence before leaving it to the jury. That assessment is a question of law, not fact, even though it involves evaluating the evidence. The applicable test is whether there is evidence upon which a reasonable jury could find a reasonable possibility that both the subjective belief of the accused and the objective reasonableness of the response were established.

The Court held that the evidence fell well short of that threshold. The conduct of the Australian Government in committing forces to Iraq was lawful under domestic law, and that finding was close to decisive. Beyond that, there was no evidence of any particular unlawful operation, no identified persons at imminent risk, and no meaningful causal link between painting the Opera House and preventing any harm to anyone. The "imminence" the appellants relied on was the imminence of the Government's announcement, not the imminence of injury to any identifiable person. Adams J described the relevant questions (defence against what, when, to whom, and in what circumstances) as "almost entirely speculative." Newman AJ added that self-defence has never operated at common law to justify an attack on an innocent third party wholly unconnected to the alleged threat.

The Court also rejected the appellants' submission that, because the reasonableness of their response was a matter of judgment rather than evidence, it was necessarily for the jury. The trial judge was entitled to conclude that no reasonable jury could regard the act as a proportionate response by way of defence. The Court further rejected the argument that politically sensitive cases warrant a different approach, characterising it as an invitation for courts to become forums for political debate rather than impartial tribunals of law.

Issue 2: Absence of malice and the International Criminal Court Act

The appellants initially conceded that if self-defence was correctly excluded, their s 194(3) argument (that they acted under a reasonable belief they had a right to do the act) also fell away. They sought to withdraw that concession and argue a right arose under the International Criminal Court Act 2002, on the basis that citizens may use reasonable force to prevent the commission of crimes under the Rome Statute. Adams J rejected this. A "claim of right" under s 194(3) requires a belief that the accused had particular rights in respect of the subject property; no such belief was demonstrated. Additionally, the Opera House Trust was entirely unconnected to any alleged government wrongdoing, and counsel for one appellant conceded there was nothing in the voir dire material supporting the commission of any relevant Rome Statute offences. The argument that war inevitably produces such offences was held to be plainly insufficient.

Issue 3: Sentencing and the non-parole period

The appellants argued that Blackmore DCJ erred by imposing a fixed term rather than first setting a non-parole period as required by s 44(1) of the Crimes (Sentencing Procedure) Act 1999. Adams J held that, while the judge's reasoning was somewhat awkwardly expressed, his Honour was entitled and bound to consider whether any balance of term served a purpose. Having concluded that supervision on parole would be of no benefit and that nine months was the appropriate total sentence, imposing a further term would have been excessive. The reasoning complied sufficiently with s 45 of the Act.

Issue 4: Severity of sentence and compensation order

The Court rejected the submission that the sentencing judge gave too little weight to the appellants' motives and character. Given the seriousness of the damage and the appellants' continued assertion that they were justified, both personal and general deterrence warranted real weight. The Court found the nine-month periodic detention sentence was within the proper exercise of the sentencing discretion and was not distorted by excessive emphasis on deterrence. The attack on the compensation order also failed: the evidence did not support the allegation that the Opera House Trust "profiteered" or failed to mitigate its loss, and the remediation costs were standard in the industry. Adams J noted that, in these unusual circumstances, the compensation payments could not be treated as evidence of remorse, though Blackmore DCJ did give some favourable weight to them.

Orders Made

  • Appeals against conviction dismissed.
  • Leave to appeal against sentences granted.
  • Appeals against sentences dismissed.

Key Takeaways

  • Under s 418 of the Crimes Act 1900, a trial judge is required to assess, as a question of law, whether evidence is capable of raising both the subjective and objective limbs of self-defence before leaving the issue to the jury. Evidence falling short of that threshold is properly withdrawn.
  • Where the conduct the accused claims to have been defending against is lawful under domestic law, that fact is ordinarily close to decisive in defeating a self-defence claim. Imminence of a threat, and a meaningful causal connection between the accused's act and the prevention of harm, are critical factual considerations that may be resolved adversely by the trial judge at the threshold stage.
  • A "protest" against government policy, however sincerely motivated and however serious the perceived injustice, does not satisfy the requirements of self-defence under s 418 simply because the accused believed it was necessary. The question is whether the conduct constituted a reasonable defensive response, not whether the protest itself was reasonable.
  • Self-defence has never permitted attacks on innocent third parties who are entirely unconnected to the alleged threat. Newman AJ confirmed this as a matter of both authority and public policy.
  • In dismissing the sentence appeal, the Court confirmed that where a sentencing judge concludes that supervision on parole would serve no purpose and that the total sentence is appropriate without a further term, imposing a fixed term complies with the Crimes (Sentencing Procedure) Act 1999, provided adequate reasons are given for declining to set a non-parole period.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated