Mark & Ors v Henshaw

[1999] HCATrans 94

IN THE HIGH COURT OF AUSTRALIA

Registry  No C6 of 1998

B e t w e e n -

PATRICIA ELLEN MARK, LYNDA STONER, MARGARET MARY SETTER and MARK ANTHONY PEARSON

Applicants

and

GORDON ROBERT HENSHAW

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 APRIL 1999, AT 11.09 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicants with my learned friends, MR S.J. ODGERS and MR J.R. CLARKE.  (instructed by Friend & Hazard)

MR R.C. REFSHAUGE:   May it please the Court, I appear with my learned friend, MS P.J. RUSSELL, for the respondent.  (instructed by the Director of Public Prosecutions for the Australian Capital Territory))

GLEESON CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  Under the appeal regime in force in the ACT with respect to cases before magistrates where there has been an acquittal, the appeal is on a question of law only.  We were acquitted before the magistrate by orders made by Justice Miles and, in due the course, the Full Court of the Federal Court.  We were found guilty but not convicted.

The consequence of that, in terms of the approach to the appeal and the special leave application, is that it must be approached, we would submit, on the basis that both appeal courts below found that on the facts found by the magistrate, it was not open to find that there was a reasonable excuse.  Any other consequence in terms of errors made by the magistrate might result in some other order, but it could not result in a finding of guilt.

The Full Court of the Federal Court approached the matter, we submit, on the basis that battery hen farming is lawful.  The facts found by the magistrate lead inexorably to the conclusion that there was a dominant purpose which was to protest battery hen farming.  We challenge both of those conclusions.  With respect to the proposition that battery hen farming is lawful, the magistrate found, in our submission, to the contrary.  All that is lawful is putting hens in cages.  For the very reasons that the magistrate gave, battery hen farming at Parkwood Eggs ‑ ‑ ‑

GLEESON CJ:   Battery hen farming may or may not be conducted lawfully, depending on the circumstances of the case.

MR GAME:   It could be conducted lawfully if you let the hens out of the cage for exercise every day.  It may be lawful if you allow them to ruffle their feathers and so forth, so that there are a series of things that have to be done.  They have to have exercise, under the provisions of the Animal Welfare Act and so forth.  There is certainly no provision that says that battery hen farming is lawful.  That proposition is really central to the Full Federal Court’s reasoning, because the Full Federal Court says, in effect, and it appears at the top of page 58:

We do not accept that it is reasonable to enter as a demonstrator, upon the premise of another, when the occupant is carrying on a lawful activity of which the trespasser disapproves.

That is the central proposition which is held against us.  That is coupled with the proposition which is that the facts lead ‑ ‑ ‑

GLEESON CJ:   Would you just tell us what is wrong with that proposition?

MR GAME:   What is wrong with that proposition?

GLEESON CJ:   Yes.

MR GAME:   What is wrong with that proposition is that – incidentally, it is not our argument that we must succeed in showing that that proposition is incorrect to succeed, but we say that proposition may or may not be correct.  Whether or not an activity is lawful is one of the factors that is relevant to reasonable excuse, just as in self‑defence, applying Zecevic, whether or not an activity is lawful, along with the issues of proportionality, along with the issues of exhausting remedies.  So too, with escape and necessity, the lawfulness of the activity is just one of the factors. 

What a person believes, for example, in this case, a belief that an activity is cruel, may well, we submit, found a reasonable excuse, and the person may have no belief at all, one way or another, as to whether or not an activity is lawful.  For instance, child neglect may or may not be lawful, but a neighbour might decide that they have to do something about it.  Whether or not it turns out to be lawful may or may not – it may well be relevant to the issue of reasonableness, but it is not determinative.  That is the answer that we put to that proposition.  So, too, we say in relation to cruelty to animals.  The fact that it turns out to be lawful is not determinative of the issue.

As I said, the whole judgment turns upon the proposition, in our submission, that in effect battery hen farming is lawful, and one sees that at the bottom of page 56.  The first point the court makes is:

that the battery hen method of operation remains lawful.

We say the magistrate found that battery hen farming as it is practised at Parkwood Eggs is unlawful, and there has never been any challenge to that finding.  Then, as I said, the Full Court introduced the notion that there was a dominant purpose.  One sees that at page 56 about line 30:

clear inference that the dominant purpose of the appellants in entering upon the premises…..was to bring as much media and public attention as possible to their activities to that they could thereby better advertise their cause to have battery hen farming abolished.

Which the court then says is lawful and therefore no reasonable excuse.  Therefore, the finding of guilt.  Then one goes to the very end of the judgment, at the bottom of page 62:

the inference that may fairly be drawn from the undisputed facts points inexorably to the conclusion that the appellants’ dominant purpose in entering the premises was to advance their cause against battery hen farming.

With respect to dealing with what occurred in this case, we submit that the magistrate, himself, did not engage in any process, in effect, of severing the purposes – and it is trespassing, not entering or staying upon the premises, which is the offence ‑ ‑ ‑

GLEESON CJ:   A challenge to the proposition at the bottom of 62 and the top of 63 hardly sounds like a special leave point.

MR GAME:   No, but, your Honour, there is a very important question of general importance which lies behind it, (a), and, (b), there is a question of general importance bound up in that itself, which is, does it matter that the dominant purpose does not give rise to a reasonable excuse if some subservient purpose or excuse, which satisfies the purposes of reasonable excuse does, that is to say, the Full Court has introduced a proposition which is not part of the requirement of reasonable excuse, which is dominant and subservient purposes.  So, we make a challenge to what the Full Court did ‑ ‑ ‑

GLEESON CJ:   This was a proposition advanced by the Full Court in answer to a criticism that the appellants advanced about the reasoning of Chief Justice Miles.  This is their answer to that criticism.

MR GAME:   Yes, but it is their answer to the whole case which is, if one goes back to page 56, that there was a “dominant purpose”, and that the dominant purpose was to basically bring media attention to their protests against battery hen farming. 

What I said first was, the magistrate did not approach the case in that way at all.  He approached it with respect to what happened at Parkwood Eggs.  He did say, and he said more than once, that they had a purpose which concerned outlawing battery hen farming, and I cannot get away from that, but throughout his judgment his attention is in relation to what the applicants believed about what was happening at Parkwood Eggs.  So, the Full Court has, in effect, severed the purposes in a way in which was never contemplated by the magistrate.  I accept that an argument about that is not something that would get special leave, but what I say is, in relation to this, is that the introduction of notion of a dominant purpose is a matter of general importance which would attract a grant of special leave.

What I say in relation to my argument in respect of, in effect, the way in which – if my argument in relation to the way in which the Full Court approached the case, is accepted, then a question of general importance does arise in respect of what at the moment is said to be the subservient purposes, which is their concerns in relation to what was happening at Parkwood Eggs.  The question of general importance that arises in relation to that is what are the legitimate limitations, or limits, upon protest against unlawful activity by occupiers where other means, that is to say, complaints to the authorities and so forth, have failed, and where the means used are minimal, in the sense that the protesters take the minimal action necessary; they do not cause disturbance; they attend to sick hens and so forth. 

So, there is a question of general importance which - if the attack on the approach is not accepted, we submit there is a question of general importance which is the one I have put.  If it does not succeed, there is that question of general importance.  If the attack does succeed, there is the further question of general importance which, we submit, is a quite fundamental one in the criminal law, which is, as I said, what are the limitations.

McHUGH J:   Are you not putting up a straw man here?  Is not the real ground of the Full Court’s decision to be found at page 55, line 35:

However, the critical issue in determining whether the appellants entered upon the premises of Parkwood Eggs with a reasonable excuse is not the appellants’ beliefs or their state of mind.  Whilst those factors are relevant –

et cetera:

it requires the application of community standards…..it requires the trier of fact to determine whether the trespassers’ conduct is acceptable to the community.

Is not that the way that the Full Court approached the matter and these references to “dominant purpose” and so on, in effect, asides.  Again, at 56, 57, where, after referring to “dominant purpose” in 56, at the bottom of the page their Honours say although the magistrate made findings about the battery hen farming:

Parkwood Eggs was not on trial; and under our system of law, it is for the appropriate law enforcement agency to investigate and, if necessary, prosecute lawbreakers.  Society cannot afford to allow private citizens, no matter how well‑meaning, to assume the role of the law‑enforcers.

MR GAME:   Yes, but, your Honour, that is the other point that I began by making, which is that in application of community standards the assumption is made by the court that what was occurring at Parkwood Eggs was lawful, and the magistrate had found to the contrary.  That is to say, the reasoning is this:  the Full Court says, “Look at their beliefs.  What is the excuse advanced?  Is it reasonable?”.  That is a question, a qualitative question, that applies the application of community standards.  We do not question that, but one has to look at what the circumstances were which they found when they trespassed in order to test that proposition.

The response that the Full Court makes to that is, applying the community standards, there can be only one conclusion, because what was happening at Parkwood Eggs was lawful, and battery hen farming is lawful.  But that is a proposition which is destroyed by an examination of what occurred at Parkwood Eggs.  So, we have to go back to examine the question afresh.  That finding just simply cannot stand, in our submission.  I do not question that that proposition that your Honour has put to me is important to the judgment, but that is not the whole of the reasoning, because one has to introduce this notion of dominant purpose and then apply it to what the community standards are applied ‑ ‑ ‑

McHUGH J:   But the court went on at 57, at the bottom of the page, to say:

The dominant issue was the correct identification of the reason for the appellants’ entry onto the premises. 

And they made a particular finding about what that reason was.  Now, that is a question of fact.  They may have been right or they may have wrong.  It is not a special leave point.

MR GAME:   But, your Honour, in a sense I have already put this argument which is that there is a special leave point tied up in that which is not the dispute about their finding.  I do not dispute that the court can say – that the findings of the magistrate inexorably lead to a particular conclusion. 

I am not questioning that proposition.  I am questioning the actual reasoning involved with what they did but, as I said, the proposition that I put in respect of that is that it is an incorrect approach to the question of reasonable excuse; in effect to elevate one of what we submit were three properly analysed excuses advanced, elevate one and then in effect not address oneself to what are said to be the subservient purposes which, in this case, were firstly, the several hours they spent saving chickens when they got there, and the second being their concerns that action had not been taken against Parkwood Eggs for the breaches that they were concerned occurred under the Animal Welfare Act in respect of Parkwood Eggs.  Now, those were the other purposes.

What is really happening is it is being said there is an overarching purpose.  We will, look at the overarching purpose which is a much wider agenda and says the community would not accept that you can make an attack on that much wider agenda in this particular way.

Those, in substance, are the submissions that we make, your Honour.

GLEESON CJ:   Thank you, Mr Game.  We do not need to hear you, Mr Refshauge.

The Court is of the view that this case does not raise an issue suitable for the grant of special leave to appeal and the application is refused.

Does any question of costs arise?

MR REFSHAUGE:   Yes, your Honour.

GLEESON CJ:   Do you resist that, Mr Game?

MR GAME:   No, your Honour.

GLEESON CJ:   The applicant must pay the respondent’s costs of the application.

We will adjourn to reconstitute.

AT 11.25 AM THE MATTER WAS CONCLUDED