Citation: Police v Ryan Benjamin Castle [2011] NSWLC 22
Court: NSW Local Court
Date: 8 July 2011
Judge: Magistrate Bone
Background
In April 2010, a group of protesters gathered at Clarkes Road, Greendale, near the Mumbulla State Forest in southern New South Wales. The accused, a protester concerned about logging operations on what he believed to be a sacred Aboriginal site, positioned himself atop a timber tripod that had been erected across the road, blocking forestry contractors from accessing the site.
Police attended at the request of Forestry NSW personnel and directed the accused to descend from the tripod. He refused. He remained on the tripod throughout the day until police used a cherry-picker to remove him at approximately 4.30pm. He was arrested and charged with two offences.
What the accused did not know when he mounted the tripod, but what emerged during proceedings, was that the logging operation itself was potentially unlawful. The harvest plan had been approved without any recognition that the relevant land had been formally gazetted as an "Aboriginal place" under the National Parks and Wildlife Act 1974. Forestry NSW halted the operation the same afternoon and the regional manager subsequently issued a letter of apology to the Biamanga Board of Management.
Legal Issues
- Whether the accused was guilty of failing, without reasonable excuse, to comply with a police direction under s 199(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
- Whether the accused had a "reasonable excuse" for refusing to comply with the police direction, in circumstances where the underlying logging operation was arguably unlawful
- Whether the accused was guilty of causing timber to be cut on Crown timber lands under s 27(1)(a)(iii) of the Forestry Act 1916, on the basis that he was complicit in the construction of the tripod made from freshly cut saplings
Decision
Forestry Act charge dismissed. The prosecution argued that, because the accused participated in the planning and execution of the tripod protest, he was responsible for the felling of the small trees used to construct it. The magistrate accepted the defence submission that guilt required proof beyond reasonable doubt that the accused either cut the trees himself or was party to an enterprise that contemplated obtaining logs from Crown timber land. No such evidence existed. The accused's evidence that he did not know where the logs came from could not be rejected, and the charge was dismissed.
The LEPRA direction charge: the reasonable excuse question. The magistrate acknowledged that it would ordinarily be unreasonable to erect a tripod, occupy it, and refuse a police direction on the basis that remaining was necessary to stop an unlawful activity. Law enforcement is, in principle, a matter for police and other authorised bodies, and where those bodies are present or available, private intervention to stop allegedly unlawful conduct would not ordinarily constitute a reasonable excuse.
However, the magistrate found this case fell outside the ordinary position. The relevant authorities had already been alerted to the questionable legality of the logging operation prior to the accused's arrest, yet the operation continued. Critically, the operation was halted shortly after the accused was removed. In those specific circumstances, the magistrate accepted that the accused's conduct was reasonable and that he had a reasonable excuse for refusing to comply with the police direction.
The LEPRA charge was accordingly dismissed.
Orders Made
No orders were made in this decision.
Key Takeaways
- A charge under s 199(1) LEPRA for failing to comply with a police direction requires the prosecution to establish that the person persisted in non-compliance after the direction was given; the section expressly provides a defence of "reasonable excuse."
- Whether a protester's refusal to comply with a police direction constitutes a "reasonable excuse" turns on the particular facts, including whether the activity being protested was itself arguably unlawful and whether lawful avenues for redress had already been pursued and had stalled.
- The Local Court confirmed that, in most circumstances, it would not be reasonable for a private individual to take direct physical action to prevent an allegedly unlawful activity when police or other authorities are present and available to address the matter.
- An exception can arise where the proper authorities have been alerted to a potential illegality, have failed to act, and the unlawful conduct continues; in such circumstances, a court may find that private preventive action carries a reasonable excuse.
- Under the Forestry Act 1916, mere participation in a protest at which trees were felled is insufficient to establish complicity in the felling; the prosecution must prove the accused either felled the trees personally or was party to an enterprise that specifically contemplated obtaining timber from Crown timber land.
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 197, 199
- Forestry Act 1916 (NSW), s 27(1)(a)(iii)
- National Parks and Wildlife Act 1974 (NSW)
Cases
- Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497
- Devlin v Armstrong [1971] NILR 13
- DPP v Wille & ors (1999) 47 NSWLR 255
- R v Bacon & ors [1977] 2 NSWLR 507
- R v Hewke & ors (unreported, Maidstone Crown Court, 8 September 2008, Caddick J)
- Taikato v The Queen (1996) 186 CLR 454