The founder's peaceful protest arrest 'credentials'

1992

- tree sits against woodchipping Nalbaugh SF SENSW - no arrest, too high

- climbed Opera House with no nukes weapons banner - arrest, released

1993

- forest protest Coolangubra arrest, conviction overturned on appeal NSW CCA

- forest protest Badja SF - no arrest - tree sit

- paddlers for peace, rescued by police launch from ship screw no arrest

1994 - forest protest Croobyar, no arrest due to pre election sensitivity

1995 - M2 tollway destruction - arrest, no conviction recorded Hornsby

1997 - Eastern Distributor tollway - arrest, no conviction Downing centre

1999 - red paint on Newcastle woodchip pile, arrest, no conviction recorded

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Magistrate M. Morihan, Newcastle Local Court 12th May 1999

JUDGEMENT

BENCH: The defendant is charged that on March 4 1999 at Kooragang Island in the state of New South Wales did, without lawful excuse, enter the enclosed lands on Sawmills Exports Pty Ltd at 16 Herron Road without the consent of Dean Allen Nelson, the person, apparently, in charge of the said enclosed lands and further that he did maliciously damage property to wit wood chip the property of Sawmills Pty Limited.

The facts are that the defendant and a number of other protesters went to the premises of Sawmills Exports Pty Limited, known as Boral, to protest against wood chipping. The defendant, Mr McLoughlin, says that he is a non-practising solicitor, a member of Waverley Council and a researcher for one of the forest environmental groups.

There is no dispute that his purpose on this day was to protest and to this effect the media have been contacted and that symbolic blood would be placed on top of a wood chip pile. This was the red paint referred to in the charge of malicious damage.

The defendant says this was necessary because the state premier and the government had not kept their promises in relation to the protection of native forests, and with an election coming up, he and others wished to make a point. He also added that unless something theatrical was promised to the media they would not attend and give the event the publicity desired.

In any event, the prosecution case is that the defendant went to a back entrance of Boral, he spoke to a young man there who was apparently, confused when Mr Vincer came up.

Mr Vincer has given evidence that he asked the defendant to leave. The defendant indicated that he was with the media and named radio station 2NUR. Mr Vincer then indicated that he would take the defendant to the office, presumably to speak with a higher authority.

Whilw walking past a 15 foot high stack of wood chips, the defendant ran up this pile of wood chips with Mr Vincer in hot pursuit.While running he dropped a blue coat he was carrying which hid a tin of red paint and when he reached the top of the pile he tipped out the red paint onto the wood chips.

Another employee, a bulldozer driver by the name Craig Dubbelde, arrived, pulled the defendant down and held him. His evidence is that he said to the defendant that the police were coming to which, he says the defendant replied, "Good. I want to be arrested."

The defendant was co-operative at all times with the staff and police stressing that his action were in support of his strongly-held beliefs.

The defendant gave evidence. He concedes that he tricked Mr Vincer into gaining access, but denies that he was there without lawful excuse. He does admit that he poured paint onto the wood chips, that some damage may have been occasioned to the wood chips but disputes the claim by Boral that compensation amounted to $159.

It seems to me from the evidence that the amount of compensation is almost impossible to quantify with ant precision.

The prosecutor only asked two questions in the cross-examination of the defendant and they were both very much to the heart of the matter. Namely:

Q. Did you have permission to be on the premises?

A. No.

Q. Did you pour the paint on the woodchips?

A. Yes."

In relation to the charge of tresspass, the defendant argues that he did have permission of sorts. That he was with Mr Vincent en route to the office and that this implied permission. When it was pointed out to him that this had been obtained by telling a lie, he replied that it was only a white lie and suggested that this was irrelevant.

The defendant also sought to rely on the case of Neil v R, a 1982 high court High Court Case in which the defendant quoted Mr Justice Murphy as saying that agitators were necessary for the advancement of our society.

He also quoted another decision, the reference of which I missed, that freedom of expression is necessary for minorities.

The defendant also relied on the phrase lawful excuse and submitted that his actions were excusable provided they were not for a criminal purpose. His lawful excuse is the deception by the premier and his back-flips on public promises to protect native forests. He referred to a higher morality as being his motivation, but went no higher.

I strongly doubt whether his excuse was lawful.

The defendant also referred to the definition of section 5 and the statutory defence in section 194 (3) of the Crimes Act. Namely, "Every act out of malice, whether against an individual or any corporate body or number of individuals or done without malice but with indifference to human life or suffering or with the intent to injure some person or persons or corporate body in property or other and in such case without lawful excuse or excuse or done reckless, wantonly, shall be taken to have been done maliciously within the meaning of this act and every indictment and charge where malice is by law an ingredient of the crime".

Section 194 (3) says, "For the purposes of this chapter an act done my a person under reasonable belief that the person had the right to do the act, shall be taken not to have done maliciously".

The defendant submits that he had a lawful excuse, namely, to highlight what he says were back-flips by the premier on forest protection.

He was there to demonstrate. There was no malice intended. That he sent $20 in the mail to Boral to pay for the damaged wood chips and that the paint, which witnesses say was spread, was not spread by him, but by Boral's employees when they subdued him.

In relation to the ownership of the wood chips, the defendant disputes ownership by Boral. He says the prosecution have not proved ownership. That no contracts of purchase have been tendered to the Court and implies that wood in native forests is owned by all Australians and presumably can't be sold to Boral or anyone else. Be that as it may, Mr Nelson, the operations manager of Boral, gave evidence of the purchase price of wood chips and their sale prices.

I accept that the wood chip was owned by Boral.

There is no doubt that the defendant feels strongly about the matters he has raised and I have some sympathy for him.

As an intelligent man with legal training, clearly he must have been aware of the consequences of what he was doing.

After being asked to leave to then gain admittance by telling a lie, does not make that admittance lawful.

In my view he was a trespasser, irrespective of his motive.

In relation to the damage to the wood chip, clearly there was damage, however minute and I do not accept the defendant's motive amounted to a lawful excuse or that he was justified in so doing because of higher morality, presumably his.

Like all cases of this nature the whole thing is quite trivial with the only things being damaged being egos and feelings.

I FIND BOTH OFFENCES PROVED.

PROSECUTOR: At this point. Although there's one matter referring to an intimidation, a 545B offence, back in 1993. Mr McLoughlin tells me that that one was appealed by way of a stated case, it would seem, to The Supreme Court and he'd given me a reference of Plum and ORS v The Crown and apparently the decision was reversed and it would appear as though it hasn't been removed from the record at the Criminal History Section, New South Wales Police Service.

I accept that from him, your Worship. I can't dispute that at this point.

MATTER INTERPOSED

BENCH: Back to you, Mr McLoughlin. What do you wish to say about it?

DEFENDANT: Your Worship, I want to thank my friend for accepting my comment about the 1993 number 4 matter.

PROSECUTOR: I don't wish to interrupt, sir. There is a claim for witness expenses and I put that now. He may wish to comment on that.

BENCH: I think the Attorney General should pay it.

DEFENDANT: I wanted to hand up if I may references of my standing in the community. I come before the court with a clear record. It's true that I have involved in environmental protests, but they have been found to be justified on various reasons.

BENCH: Nobody minds- well, you can protest, Mr McLoughlin. It's just that when it overflows into the Court arena. We're here to do serious and I don't consider this very serious. There are other- certainly the issue is, but bring trivial offences like this to the Court room. Look at the person who was in custody. He has a lot more serious problems than you've got.

DEFENDANT: I take your point, your Worship. In that context, yes and unfortunately there is a competing political framework which--

BENCH: ..(not transcribable)..

DEFENDANT:--will take your findings very seriously. But perhaps not in a life or death matter, the way you just referred to.

BENCH: I dont think so, Mr McLoughlin.

DEFENDANT: They will I believe in political forums and I would make a submission for no conviction recorded under 556A if you're so minded to do.

BENCH: Well, you've been doing- you're record would indicate that you've been pretty busy at this Mr McLoughlin. Do I take it that the other entries that are on your record, that were withdrawn, were similar matters?

PROSECUTOR: They were, your Worship.

BENCH: When I say withdrawn, in other words the prosecution was dropped.

PROSECUTOR: The prosecution in relation to the M4 protests are the two that appear on the record is withdrawn. The Bombala one was a forestry protest on the south coast in '93.

BENCH: And was it withdrawn?

PROSECUTOR: Well no. It went to finality and that was the subject of an apparent Stated case. I can't comment on that. I say that that exists.

BENCH: There's two withdrawn here. Both the Downing Centre, one '95, one '97. What was the '95 one, Mr McLoughlin?

DEFENDANT: Sorry, in the Downing Centre, was it?

BENCH: Downing Centre '95, unlawful entry on enclosed lands withdrawn.

DEFENDANT: That would be to do with the destruction of forest around the M2 Freeway.

BENCH: And the '97 one? Remain on enclosed lands?

DEFENDANT: That again was to do with the destruction of native habitat at the Eastern Distributor freeway construction. I might just add, your Worship, that from those public protests governments have changed policies and the fact that they were withdrawn reflects the change and improvement in public policy.

BENCH: Do I take it then that a conviction is a badge of courage, Mr McLoughlin, amongst your movement?

DEFENDANT: I'd much rather not have such..(not transcribable).. I must admit and it's a sacrifice for me, yes.

BENCH: Well, I'm prepared to do it because your record, on the face of it, is a very good one. As I said, the whole thing's trivial. I think there has been an over-reaction all around. BY you, by the Boral people by just about everybody and I realize the whole thing's politically motivated and it's spilled over into the court.

I've spent a lot of time hearing your case, Mr McLoughlin, that I normally hear far more serious cases. I've prepared to allow you to keep your record this time, but normally you get a 556A at once. It's on your record. You get it today. What happens after that, of course, the magistrate concerned will look at it very closely, in particular the previous withdrawals. It's a matter for you. You're a member of the legal profession. I'm sure you know how it works.

DEFENDANT: I wouldn;t expect to get one again.

BENCH: Well, it's logical and ..(not transcribable).. system that's applied and we all know how it works.

..(not transcribable).. AND I DISMISS BOTH MATTERS UNDER SECTION 556A OF THE CRIMES ACT. I MAKE A SECTION 353A ORDER IF IT HAS NOT ALREADY BEEN MADE­. I MAKE NO ORDER FOR WITNESS EXPENSES AND I MAKE NO ORDER FOR COMPENSATION.

With the witness expenses, sergeant, the problem with that is that there's a scale prescribed and that the scale has to be adhered to no matter what. I don't know where this fits into the scale, so to make sure that it --

PROSECUTOR: As I understand it, your Worship, the company has paid their employees today for their wages to attend court--

Bench: But I'm bound by the scale and it's set by the Attorney-General's Department. If you arrange for them all to go to the office, the staff there will look after them.