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Veira v Cook

Veira v Cook

Case [2021] NSWCA 302 9 December 2021

Appeal

Jurisdiction

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Statutory Construction

Criminal Law

Statutory Interpretation

Civil Procedure

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Veira v Cook [2021] NSWCA 302
Hearing dates: 9 July 2021
Date of orders: 9 December 2021
Decision date: 09 December 2021
Before: Basten JA at [1];
Meagher JA at [2];
Emmett AJA at [51]
Decision:
(1) Dismiss summons seeking leave to appeal
(2) Order that the applicant pay the respondent’s costs

Catchwords:
CRIME – appeal and review – application for leave to appeal from Supreme Court orders dismissing appeal from Local Court – where applicant convicted of unlawfully entering inclosed lands and interfering with business – where conduct done to remove chickens from cruel conditions – whether defence of necessity available – consideration of R v Rogers (1996) 86 A Crim R 542

Legislation Cited:
Crimes (Appeal and Review)Act2001 (NSW), s 52
Criminal Code (Qld), s 31(1)(d)
Inclosed Lands Protection Act 1901 (NSW), ss 4, 4B
Inclosed Lands Protection Amendment Act 1997 (NSW)
Supreme Court Act 1970 (NSW), s 101(2)(h)

Cases Cited:
Ajayi v The Queen [2012] WASCA 126; (2012) 221 A Crim R 148
B v R [2015] NSWCCA 103
Bobbe v R [2021] NSWCCA 44
Clarkson v The Queen [2007] NSWCCA 70; (2007) 171 A Crim R 1
Director of Public Prosecutions v Wille (1999) 47 NSWLR 255
Johnson v Phillips [1976] 1 WLR 65
Marwey v The Queen (1977) 138 CLR 630; [1977] HCA 68
Mattar v R [2012] NSWCCA 98
Mouse’s Case (1608) 12 Co Rep 63; 77 ER 1341
Perka v The Queen [1984] 2 SCR 232
R v Dimitropoulos [2020] QCA 75; (2020) 282 A Crim R 402
R v Loughnan [1981] VR 443
R v Quayle [2005] 1 WLR 3642
R v Rogers (1996) 86 A Crim R 542
R v Z [2005] 2 AC 467
Smith v Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280
Sodeman v The King (1936) 55 CLR 192
Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53
The Gratitudine (1801) 3 C Rob 240; 165 ER 45
United States v Bailey 444 US 394 (1979)
Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; [1987] HCA 26

Texts Cited:
Lewis Frederick Sturge, A Digest of the Criminal Law (Indictable Offences) (9th ed, 1950, Sweet & Maxwell)
Sir James Stephen, Digest of the Criminal Law (1st ed, 1877, Macmillan)

Category: Principal judgment
Parties: Maria Veira (Applicant)
Peter Cook (Respondent)
Representation:
Counsel:
P Singleton (Applicant)
J S Caldwell (Respondent)
Solicitors:
Animal Defenders Office (Applicant)
Office of the General Counsel, New South Wales Police Force (Respondent)

File Number(s): 2021/3826
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 1776

Date of Decision:

9 December 2020

Before:

Adamson J

File Number(s):

2019/390074

HEADNOTE

[This headnote is not to be read as part of the judgment]

In June 2018, the applicant entered a poultry farm, removed chickens contained in cages, and…

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 Veira v Cook

Details

AGLC: Veira v Cook [2021] NSWCA 302
Case: [2021] NSWCA 302
Decision Date: 09 December 2021

CaseChat Overview and Summary

The applicant, Veira, sought leave to appeal to the Court of Appeal of New South Wales against orders of the Supreme Court which had dismissed her appeal from convictions in the Local Court. Veira had been convicted of unlawfully entering enclosed lands and interfering with a business, with her conduct motivated by a desire to remove chickens from what she perceived as cruel conditions.

The central legal issue before the Court of Appeal was whether the defence of necessity was available to Veira in the circumstances of her offending conduct. This required the Court to consider the elements of the defence of necessity and whether they could be satisfied by the facts presented.

The Court of Appeal, in dismissing the summons for leave to appeal, applied established principles regarding the defence of necessity. While the precise reasoning is not detailed in the provided text, the outcome indicates that the Court found the defence of necessity was not applicable to Veira's case. This suggests that the Court determined that the conditions for invoking the defence, such as the absence of a reasonable legal alternative or the proportionality of the actions taken, were not met.

Consequently, the Court ordered that the summons seeking leave to appeal be dismissed and that Veira pay the respondent's costs.

Orders

Orders of the court

(1) Dismiss summons seeking leave to appeal

(2) Order that the applicant pay the respondent’s costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Veira v Cook [2021] NSWCA 302

Most Recent Citation

Environment Protection Authority v Sydney Water [2022] NSWLEC 100

Cases citing this decision · 5 of 5 shown

Binse v The King
[2025] VSCA 158 Para 3

…enous Affairs (2004) 219 CLR 486, 496–7 [15] (Gleeson CJ); [2004] HCA 36; B v The Queen [2015] NSWCCA 103 [301]–[302] (Simpson J); Veira v Cook [2021] NSWCA 302 [10]–[18] (Meagher JA).…
Burton v The King; Katelaris v The King
[2025] NSWCCA 89 Para 93

…s injury that cannot otherwise be avoided and the only way for the accused to avoid that death or serious injury was to disobey the law: Veira v Cook [2021] NSWCA 302; (2021) 293 A Crim R 569. This Court in Veira v Cook held that the applicant was not entitled to respond to threatened harm based on their own value…
R v Quint
[2023] NSWDC 190 Para 23

…The history and elements of the defence, or excuse, of “necessity” were discussed by the Court of Appeal in Veira v Cook [2021] NSWCA 302 at [7]-[19] per Meagher JA. This included a reference to the test stated by the Full Court of the Victorian Supreme Court in R v Loughnan [1981] VR 443 at 448-449:…
NSW Police v Barker
[2022] NSWLC 9 Para 53

…nce with common law principles, he would therefore be required to prove any ‘lawful excuse’ on the balance of probabilities (see Veira v Cook [2021] NSWCA 302 [34]).…
Environment Protection Authority v Sydney Water
[2022] NSWLEC 100

…he Environment [2021] FCA 560 Taiapa v The Queen (2009) 240 CLR 95; (2009) 214 A Crim R 486; (2010) 261 ALR 488; [2009] HCA 53 Veira v Cook [2021] NSWCA 302 Williams v The Queen (1978) 140 CLR 591 Environment Protection Authority v Australian Iron and Steel (1992) 28 NSWLR 502 Category: Principal judgment Parties:…

View all 5 citing cases →

Cases cited in this decision · 22 of 22 shown

Bobbi v R
[2021] NSWCCA 44 Para 17

…] NSWCCA 98 at [7]-[8]; B v R [2015] NSWCCA 103 at [81], [301]-[302]; R v Dimitropoulos [2020] QCA 75; (2020) 282 A Crim R 402 at [66]; Bobbe v R [2021] NSWCCA 44 at [29].…
Lopes v Cook
[2020] NSWSC 1776

…ication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 1776 Date of Decision: 9 December 2020 Before: Adamson J File Number(s): 2019/390074…
R v Dimitropoulos
[2020] QCA 75 Para 17

…SCA 126; (2012) 221 A Crim R 148 at [52]; Mattar v R [2012] NSWCCA 98 at [7]-[8]; B v R [2015] NSWCCA 103 at [81], [301]-[302]; R v Dimitropoulos [2020] QCA 75; (2020) 282 A Crim R 402 at [66]; Bobbe v R [2021] NSWCCA 44 at [29].…
B v R
[2015] NSWCCA 103 Para 17

…010) 204 A Crim R 280 at [17]; Ajayi v The Queen [2012] WASCA 126; (2012) 221 A Crim R 148 at [52]; Mattar v R [2012] NSWCCA 98 at [7]-[8]; B v R [2015] NSWCCA 103 at [81], [301]-[302]; R v Dimitropoulos [2020] QCA 75; (2020) 282 A Crim R 402 at [66]; Bobbe v R [2021] NSWCCA 44 at [29].…
Ajayi v The Queen
[2012] WASCA 126 Para 17

…07] NSWCCA 70; (2007) 171 A Crim R 1 at [78]-[88]; Smith v Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280 at [17]; Ajayi v The Queen [2012] WASCA 126; (2012) 221 A Crim R 148 at [52]; Mattar v R [2012] NSWCCA 98 at [7]-[8]; B v R [2015] NSWCCA 103 at [81], [301]-[302]; R v Dimitropoulos [2020] QCA 75;…
Mattar v R
[2012] NSWCCA 98 Para 17

…tern Australia [2010] WASCA 205; (2010) 204 A Crim R 280 at [17]; Ajayi v The Queen [2012] WASCA 126; (2012) 221 A Crim R 148 at [52]; Mattar v R [2012] NSWCCA 98 at [7]-[8]; B v R [2015] NSWCCA 103 at [81], [301]-[302]; R v Dimitropoulos [2020] QCA 75; (2020) 282 A Crim R 402 at [66]; Bobbe v R [2021] NSWCCA 44 at…
Smith v The State of Western Australia
[2010] WASCA 205 Para 17

…epts of necessity, duress or compulsion. See Clarkson v The Queen [2007] NSWCCA 70; (2007) 171 A Crim R 1 at [78]-[88]; Smith v Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280 at [17]; Ajayi v The Queen [2012] WASCA 126; (2012) 221 A Crim R 148 at [52]; Mattar v R [2012] NSWCCA 98 at [7]-[8]; B v R [201…
Taiapa v The Queen
[2009] HCA 53 Para 15

…In Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53 the accused relied on a defence of compulsion arising under s 31(1)(d) of the Criminal Code (Qld). The issue was whether the Court of Appeal had erred in concluding that the evidence did not disclose a case that there were reasonable grounds for the applican…
Clarkson v R
[2007] NSWCCA 70 Para 17

…ts in Australia with respect to common law and statutory defences involving concepts of necessity, duress or compulsion. See Clarkson v The Queen [2007] NSWCCA 70; (2007) 171 A Crim R 1 at [78]-[88]; Smith v Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280 at [17]; Ajayi v The Queen [2012] WASCA 126; (20…
DPP v Wille
[1999] NSWSC 661 Para 34

…s not made out” (LC [61]). Her Honour referred to and applied at LC [45], [46] the decision of Kirby J in Director of Public Prosecutions v Wille (1999) 47 NSWLR 255 that a defence of necessity may constitute a “lawful excuse” to an offence under s 4(1) of entering inclosed lands without consent ( Wille esp at [19]-[2…
Zecevic v Director of Public Prosecutions (Vic)
[1987] HCA 26 Para 11

…t 546) that consistently with the approach to self-defence taken by the High Court in Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; [1987] HCA 26, requirements such as “urgency and immediacy” of the threatened harm should not be treated as conditions for the existence of necessity, but rather as…
Marwey v The Queen
[1977] HCA 68 Para 16

…lief is not different in substance from asking whether a person has reasonable grounds for belief” (citing Marwey v The Queen (1977) 138 CLR 630; [1977] HCA 68), the Court adopted the following observations of Gleeson CJ in Rogers “with reference to the policy that informs this area of the law” (at [36]-[37]):…
Sodeman v the King
[1936] HCA 75 Para 34

…w makes clear, proof of a lawful excuse is on the defendant and is to be made out on the balance of probabilities (see Sodeman v The King (1936) 55 CLR 192 at 200-201 (Latham CJ), 216 (Dixon J)).…
[2005] 2 AC 467
[2005] 2 AC 467 Para 17

…or compulsion is by extraneous circumstances rather than human threats. In relation to the former, referring to the decision of Lord Bingham in R v Z [2005] 2 AC 467, the limitations of the duress defence were described (at [38]) as including: (2) the threat relied on must be to cause death or serious injury; (3)…
[1984] 2 SCR 232
[1984] 2 SCR 232 Para 14

…n this context, his Honour drew much from the judgment of the later Chief Justice of the Supreme Court of Canada, Dickson J, in Perka v The Queen [1984] 2 SCR 232. To excuse otherwise unlawful conduct the circumstances must “overwhelmingly impel disobedience” ( Perka at 248) or afford no reasonable opportunity for…
(1801) 3 C Rob 240
(1801) 3 C Rob 240 Para 42

…s directed to the concept of necessity as providing a defence in the criminal law. Mouse’s Case (1608) 12 Co Rep 63; 77 ER 1341 and The Gratitudine (1801) 3 C Rob 240; 165 ER 45 concerned the circumstances in which during a maritime adventure a passenger of a ferry or ship’s master may jettison luggage or cargo to se…
444 US 394
444 US 394 Para 48

…rwise be avoided” (Stephen’s Digest ), and was the accused’s “only reasonable alternative” (per Rehnquist J in United States v Bailey 444 US 394 at 410 (1979)). As Dickson J put it in Perka at 252:…
[2005] 1 WLR 3642
[2005] 1 WLR 3642 Para 17

…The position is substantially the same under English law. In R v Quayle [2005] 1 WLR 3642 the question for the Court of Appeal (Mance LJ, Newman and Fulford JJ) was whether the defence of necessity was available to a defendant charged with a drug supply offence where he intended to supply the drug to another for the…
(1608) 12 Co Rep 63
(1608) 12 Co Rep 63 Para 42

…None of the decisions referred to by the applicant is directed to the concept of necessity as providing a defence in the criminal law. Mouse’s Case (1608) 12 Co Rep 63; 77 ER 1341 and The Gratitudine (1801) 3 C Rob 240; 165 ER 45 concerned the circumstances in which during a maritime adventure a passenger of a ferry o…
[1976] 1 WLR 65
[1976] 1 WLR 65 Para 42

…or ship’s master may jettison luggage or cargo to secure the safety of the vessel, its passengers, crew or remaining cargo. In Johnson v Phillips [1976] 1 WLR 65, the question was whether a constable in purported exercise of his power to control traffic on a public road might require other persons to disobey traff…
77 ER 1341
77 ER 1341 Para 42

…referred to by the applicant is directed to the concept of necessity as providing a defence in the criminal law. Mouse’s Case (1608) 12 Co Rep 63; 77 ER 1341 and The Gratitudine (1801) 3 C Rob 240; 165 ER 45 concerned the circumstances in which during a maritime adventure a passenger of a ferry or ship’s mas…
165 ER 45
165 ER 45 Para 42

…ncept of necessity as providing a defence in the criminal law. Mouse’s Case (1608) 12 Co Rep 63; 77 ER 1341 and The Gratitudine (1801) 3 C Rob 240; 165 ER 45 concerned the circumstances in which during a maritime adventure a passenger of a ferry or ship’s master may jettison luggage or cargo to secure the sa…

Legislation cited in this decision · 4

Inclosed Lands Protection Act 1901 (NSW)
4, 4B, 4B(1)(a) 4 mentions (from Para 51)
Crimes (Appeal and Review) Act 2001 (NSW)
52 2 mentions (from Para 35)
Inclosed Lands Protection Amendment Act 1997 (NSW)
1 mention (from Para 34)
Supreme Court Act 1970 (NSW)
101(2)(h) 1 mention (from Para 21)

Medium Neutral Citation:	Veira v Cook [2021] NSWCA 302
Hearing dates:	9 July 2021
Date of orders:	9 December 2021
Decision date:	09 December 2021
Before:	Basten JA at [1]; Meagher JA at [2]; Emmett AJA at [51]
Decision:	(1) Dismiss summons seeking leave to appeal (2) Order that the applicant pay the respondent’s costs
Catchwords:	CRIME – appeal and review – application for leave to appeal from Supreme Court orders dismissing appeal from Local Court – where applicant convicted of unlawfully entering inclosed lands and interfering with business – where conduct done to remove chickens from cruel conditions – whether defence of necessity available – consideration of R v Rogers (1996) 86 A Crim R 542
Legislation Cited:	Crimes (Appeal and Review)Act2001 (NSW), s 52 Criminal Code (Qld), s 31(1)(d) Inclosed Lands Protection Act 1901 (NSW), ss 4, 4B Inclosed Lands Protection Amendment Act 1997 (NSW) Supreme Court Act 1970 (NSW), s 101(2)(h)
Cases Cited:	Ajayi v The Queen [2012] WASCA 126; (2012) 221 A Crim R 148 B v R [2015] NSWCCA 103 Bobbe v R [2021] NSWCCA 44 Clarkson v The Queen [2007] NSWCCA 70; (2007) 171 A Crim R 1 Director of Public Prosecutions v Wille (1999) 47 NSWLR 255 Johnson v Phillips [1976] 1 WLR 65 Marwey v The Queen (1977) 138 CLR 630; [1977] HCA 68 Mattar v R [2012] NSWCCA 98 Mouse’s Case (1608) 12 Co Rep 63; 77 ER 1341 Perka v The Queen [1984] 2 SCR 232 R v Dimitropoulos [2020] QCA 75; (2020) 282 A Crim R 402 R v Loughnan [1981] VR 443 R v Quayle [2005] 1 WLR 3642 R v Rogers (1996) 86 A Crim R 542 R v Z [2005] 2 AC 467 Smith v Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280 Sodeman v The King (1936) 55 CLR 192 Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53 The Gratitudine (1801) 3 C Rob 240; 165 ER 45 United States v Bailey 444 US 394 (1979) Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; [1987] HCA 26
Texts Cited:	Lewis Frederick Sturge, A Digest of the Criminal Law (Indictable Offences) (9th ed, 1950, Sweet & Maxwell) Sir James Stephen, Digest of the Criminal Law (1st ed, 1877, Macmillan)
Category:	Principal judgment
Parties:	Maria Veira (Applicant) Peter Cook (Respondent)
Representation:	Counsel: P Singleton (Applicant) J S Caldwell (Respondent) Solicitors: Animal Defenders Office (Applicant) Office of the General Counsel, New South Wales Police Force (Respondent)
File Number(s):	2021/3826
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2020] NSWSC 1776 Date of Decision: 9 December 2020 Before: Adamson J File Number(s): 2019/390074