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DPP v Wille

DPP v Wille

Case [1999] NSWSC 661 6 July 1999

Trespass

Defence

Criminal Law

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Reported Decision: [1999] 47 NSWLR 255
[1999] 114 A Crim R 150

New South Wales

Supreme Court

CITATION: DPP v Wille & Ors [1999] NSWSC 661 revised - 08/07/99

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 12954/98; 12956/98; 12957/98

HEARING DATE(S): 01/06/99

JUDGMENT DATE:
6 July 1999

PARTIES :

Director of Public Prosecutions (Pl/Appel)
Jurgen Wille (Def/Resp) - 12954/98)
Gregory John Archer (Def/Resp - 12956/98)
Christopher Alan Bartlett (Def/Resp 12957/98)

JUDGMENT OF: Kirby J

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S) : 1466/97

LOWER COURT JUDICIAL OFFICER: P O'Shane LCJ

COUNSEL : P I Lakatos (Pl/Appel)
M Ramage QC (Def/Resps)

SOLICITORS: S E O'Connor (Pl/Appel)
Bernard D Brassil & Co (Def/Resps)

CATCHWORDS: Trespass (Criminal); Lawful excuse; Right of peaceful protest

ACTS CITED: Justices Act, 1902 - s78A(2)
Inclosed Lands Protection Act, 1901 - s4(1)
Western Australia Police Act

CASES CITED: Black v Carrabs [1988] 9 PSR 4045
Wong Pooh Yin v Public Prosecutor [1955] AC 93
Mark & Anor v Henshaw (1998) 155 ALR 118
Taikato v Regina (1996) 186 CLR 454
Ex Parte Desmond [1866] 5 SCR 387
Crafter v O'Reilly [1934] SASR 20
Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497
Morris v Darby [1936] 53 WN (NSW) 136
Wills v Williams [1971] WAR 29
Hancock v Birsa [1972] WAR 177
Minkley v Monroe [1986] 8 PSR 3975

DECISION: Appeal allowed

THE SUPREME COURT Amended
OF NEW SOUTH WALES 8 July 1999
COMMON LAW DIVISION

KIRBY J
Tuesday 6 July 1999

12954/98 - DIRECTOR OF PUBLIC PROSECUTIONS v JURGEN WILLE
12956/98 - DIRECTOR OF PUBLIC PROSECUTIONS v GREGORY JOHN ARCHER
12957/98 - DIRECTOR OF PUBLIC PROSECUTIONS v CHRISTOPHER ALAN BARTLETT

JUDGMENT

1 HIS HONOUR: This matter comes before the Court as a case stated by Ms Pat O’Shane, Local Court Magistrate. There are, in fact, three matters. They arise out of the same incident. They were heard together (s 78A(2) Justices Act, 1902). The informations were, in each case, dismissed. The informant appeals against that dismissal.

Background to the Incident

2   Attached to the case stated is the transcript of the proceedings before the Local Court. I have been invited by both parties to have regard to that transcript.
3   In 1997 work began upon the Eastern Distributor, a Freeway linking the city with the airport. The road included a section of tunnel. An area known as the “Drivers Triangle” was set aside to construct the tunnel entrance. The land within the Drivers Triangle (and, one infers, part of the Freeway itself) was public parkland. It was held by the Centennial and Moore Park Trust. The Trust licensed the Road Traffic Authority to use certain land (including the Drivers Triangle) to construct the road. The Road Traffic Authority, in its turn, authorised a company (which was to manage the Freeway) to retain contractors to undertake the construction.
4   The contractors (Leighton Contractors) began work. A cyclone fence eight feet high was erected around the perimeter of the Drivers Triangle. Barbed wire was placed on top…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Wille

Details

AGLC: DPP v Wille [1999] NSWSC 661
Case: [1999] NSWSC 661
Decision Date: 6 July 1999

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) versus Wille was heard before the High Court of Australia. Wille was convicted for trespass on a nuclear power plant site during a protest against nuclear power. The central issue was whether Wille's actions, which involved entering the site to protest, constituted a lawful excuse for his trespass, given the right to peaceful protest. The court was required to determine the scope of the lawful excuse defence in the context of trespass and assess whether Wille's protest was peaceful and justified.

The court examined the principles of criminal trespass and the defence of lawful excuse. It considered whether Wille's entry onto the nuclear power plant site was justified as a peaceful protest under the common law. The court also assessed the balance between the right to protest and the need to protect critical infrastructure from unlawful intrusion. The central question was whether Wille's protest could be considered a lawful excuse for his trespass, given the potential risks associated with nuclear power plant operations.

The High Court held that Wille's trespass was not justified as a lawful excuse. The court found that while the right to peaceful protest is protected, it must be exercised in a manner that does not compromise the safety and security of critical infrastructure. The court emphasised the importance of maintaining public order and protecting sensitive areas from unlawful intrusion. The protest, which involved entering a highly secure nuclear power plant site, was deemed to go beyond the scope of what could be considered a lawful excuse. The court concluded that Wille's actions were not justified as a peaceful protest and affirmed his conviction for trespass.

The court's decision underscored the need for protestors to consider the potential risks and consequences of their actions, especially when targeting sensitive locations. The ruling clarified the limits of the lawful excuse defence in the context of trespass, particularly in relation to critical infrastructure. The High Court's decision emphasised the balance between the right to protest and the need to protect public safety and security.

Orders